Four justices appeared absolutely determined, on Wednesday, to overrule one of the most consequential Supreme Court decisions in the Court’s entire history.
Chevron v. National Resources Defense Council (1984) is arguably as important to the development of federal administrative law — an often technical area of the law, but one that touches on literally every single aspect of American life — as Brown v. Board of Education (1954) was important to the development of the law of racial equality. Chevron is a foundational decision, which places strict limits on unelected federal judges’ ability to make policy decisions for the entire nation.
As Justice Ketanji Brown Jackson said during Wednesday’s arguments, Chevron forces judges to grapple with a very basic question: “When does the court decide that this is not my call?”
And yet, four members of the Supreme Court — Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh — spent much of Wednesday’s arguments in Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce speaking of Chevron with the same contempt most judges reserve for cases like Plessy v. Ferguson (1896), the pro-segregation decision rejected by Brown.
The open question is whether the Court’s four most strident opponents of this foundational ruling can find a fifth vote.
None of the Court’s three Democratic appointees were open to the massive transfer of power to federal judges contemplated by the plaintiffs in these two cases. That leaves Chief Justice John Roberts and Justice Amy Coney Barrett as the two votes that remain uncertain. To prevail — and to keep Chevron alive — the Justice Department needed its arguments to persuade both Roberts and Barrett to stay their hands.
I hope Cleveland is ready, because the Cuyahoga River is going to start catching fire again.
Removing Chevron is pro democracy if the congress and senate fairly represent the people and are willing to do the extra work.
Checks notes.
Uh oh……
Extra work? What about normal work? Or even bare minimum?
Best I can do is total obstructionism and tax cuts for the rich.
Sorry, they a need another vacation after not doing anything since the last vacation. Please check back later.
This isn’t far off. Their schedule this past month and for the next several weeks is laughable (but actually disgusting.)
Putting more decisions in the hands of elected officials is not more democratic. They’re too slow and there aren’t enough of them to make all the necessary decisions. We can’t just have more elected officials because most voters can’t be bothered to learn about candidates for the positions that already exist.
so the senate is fucked with regard to representation and now the supreme court is absolutely fucked with regards to representation.
who is spose to represent me again?
i still get my 1-2 votes to solve this mess? oh right, that doesnt work that away.
yay democracy.
Democracy is great, but unfortunately USA is a very flawed democracy.
its been quite painful watching a lot of progressive action replaced with regressive action due to conservative billionaires poisoning the minds of half the country
Yes, that’s part of being flawed, that billionaires can buy elections. That and a 2 party system driven by first past the post, which is not really democracy either.
RepresentUs has a thorough comprehensive plan - https://represent.us/
Corruption is absolutely an important issue, but it’s not enough to fight corruption to fix a democracy that breeds corruption.
It’s absolutely a valid cause, and may help the other things getting fixed too down the road. It seems to me many democrats are ready for a better democracy, but not so much for the elected politicians.Thanks.
Corruption - dark money, etc is just one part of what Represent Us is working on. Many think that the push for RCV is the most important.
Ending first past the post elections might end a lot of corruption and party domination.I wish all the best for all who work to protect and improve democracy in USA, I have always loved USA, but it’s very difficult to love a country that elect Trump for president.
And I believe it only happened because there are only 2 options, which removes balance from the debate, and silences minority interests among many other negative impacts compared to a better functioning democracy.
I’ve been thinking about this for a while. We really are at a point where taxation without representation should be examined. There’s always the suggestion of a general strike to force them to function, but I think the easier and more destructive method would be to not pay taxes en masse. It would take organization to get the whole country to do it but there’s already a set date and way to disrupt the system that involves you doing nothing. Simply don’t file. What happens if nobody files their taxes? What happens if the system grinds to a halt because they chose to collect the most money from the lower tax brackets and let the big corpos run free? On the flip side what happens if everybody doesn’t file taxes and the system grinds on anyway? Then what’s the point of taxes? Wouldn’t that really expose the lack of representation?
Well the problem is 99% of people have their taxes auto deducted from their check throughout the year. So not doing your taxes, for the most part would do nothing.
That’s why labor strike would be doubly effective. You cut off both work, and taxes at the same time.
And for about the same amount of people the IRS already knows everything they need to calculate their taxes. Not having prefilled tax forms you can verify or correct if you need to, is only a thing because Intuit/turboTax etc want to keep making billions.
That’s why you vote every time, not just 1-2 times.
Civic duty. Betterment for mankind. Not watching your friends get murdered. Any reason is a good one as long as more fascist Republicans or enablers aren’t elected.
i perform every civic vote im allowed. the 1-2 was for the national bullshit.
my point stands
Hey, Oregon’s representatives are kicking ass and taking names. I definitely got my vote’s worth with them.
Comedy 2nd ammendment reversal of fortune.
So, what exactly does the executive branch do anymore, if they overrule this?
Sounds like government employees couldn’t so much as wipe their ass unless Simon Says.
Plenty of conservatives want this. Or are inextricably convinced that they think they want this, as fine a distinction as that is.
It would be hilarious if this was overturned, Biden was elected and he filled the nation with progressive justices. It’d be terrible, but it’s similar to Trump saying the president can’t commit crimes while he isn’t president.
It would be hilarious if this was overturned, Biden was elected and he filled the nation with progressive justices.
…who then use their newfound power to close a crapload of loopholes, then re-write chevron in a way that it can’t be taken down so easily again so it becomes much harder to create more loopholes or abolish good laws when people with bad intentions have power.
That’d be the best outcome of it getting overturned in my mind, anyway.
Focus on the power, or focus on the people? What would Jesus do?
It’s funny you think they care about people or Jesus.
They’re not a monolith any more than we are. Thinking of them as one is inaccurate, and makes your fight against them less effective because you’re not taking all the useful information into account.
They sure vote like a monolith.
Shared values of authoritarianism and conspiratorial thinking will do that. But no humans are a monolith. We are all individuals, and we all have a unique blend of biology and experiences.
Things are not always as they seem.
things are not always as they seem
Their votes sure are. They can disagree on little shit all they want, they’re firmly united in fucking the libs.
I think you’re making an assumption about some 70 million people that is based on your feelings, instead of any kind of objective, verifiable facts. The harsh, cold, brutal reality of real life is not nearly that simple or easy to understand, and will not feel nearly as comforting.
There is truly no act or policy so vile that you enlightened centrists won’t call a leftist the true villain for calling somebody an asshole for supporting.
Just save us the hassle and say you vote Republican.
The Daily had a great podcast on this. Overturning Chevron shouldn’t be on the table, but due to mismanagement of one agency and way over reaching because they were out of money and wanted to expand other programs is the real cause behind this. It only takes one bad apple to spoil the batch. William Bright, one of the men in the lawsuit, ended up having a regulation enforced differently on him that forced him to pay outrageous fees to take an inspector on his fishing boat that he agrees is important oversight, but never had to pay for previously. He filed a complaint and the Koch brothers jumped on this case to fund attorneys to destroy Chevron deference.
Whatever idiot in the National Marine Fisheries Service decided to start charging for this program that’s required and has never been charged to the individuals being inspected previously needs to be crucified for this. Killing Chevron deference will have so many far reaching consequences that have been providing safety regulations for the past 40 years are going to go away. It’s now going to be up to Congress, who are nowhere near experts on any of these operations or industries, to come up with specific laws that have to be enforced. These idiots don’t do their job already, and the expectation that they’re suddenly going to do it well is insane.
This is the best summary I could come up with:
As Justice Ketanji Brown Jackson said during Wednesday’s arguments, Chevron forces judges to grapple with a very basic question: “When does the court decide that this is not my call?”
And yet, four members of the Supreme Court — Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh — spent much of Wednesday’s arguments in Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce speaking of Chevron with the same contempt most judges reserve for cases like Plessy v. Ferguson (1896), the pro-segregation decision rejected by Brown.
Both companies have an army of lobbyists, engineers, and scientists, who all argue that their employer’s invention is the “best system of emission reduction” and that the federal government should require power plants to install their tech.
Agencies, by contrast, are staffed by scientists, economists, physicians, and other experts who are more capable of evaluating difficult policy questions than a handful of people with law degrees.
The fundamental question raised in both cases is whether nine unelected lawyers, all of whom have life tenure, should be placed in charge of virtually every policymaking decision made by the executive branch of government.
Justice Kavanaugh, in particular, seemed so eager to give himself this power that he might as well have spent the argument shopping for gold crowns and drawing up an invitation list for his coronation.
The original article contains 1,813 words, the summary contains 225 words. Saved 88%. I’m a bot and I’m open source!
Expand court!
Pendulum swings bitches!
Chevron Deference basically says that the actions of a federal agency cannot be questioned by anyone outside that agency; that the agency is accountable only to itself.
Regulatory capture is a major problem throughout government. Chevron Deference enables regulatory capture by denying judicial review of an agency’s enforcement priorities.
Chevron Deference effectively prohibited judicial review of the FCC’s deeply unpopular decision to suspend Net Neutrality in 2017.
Chevron deference means that federal agencies (FDA, SEC, OSHA, etc) can regulate their respective areas without Congress needing to pass a law for each regulation.
This is important because Congress moves incredibly slowly, and there are far far too many specific instances that would need to be legislated - there is literally not enough time spent in session.
Overturning Chevron would make things like lead in gasoline legal once again - it was only ‘banned’ by an EPA rule, congress also didn’t specify what actions to take in the Asbestos Hazard Emergency Respond Act.
The Safe Drinking Water Act, Clean Air act, and so on would effectively be repealed. These were acts of Congress, but the text of these laws does not spell our allowed levels of various pollutants and punishments for exceeding them, so it would be toothless.
In short, it would be an absolute disaster. Even if you think there are too many regulations, eliminating all of them, across nearly all facets of life, overnight is the worst way to go about this imaginable.
I agree completely: the agencies do need to be able to enact specific policies without having to petition Congress to enact them.
The problem isn’t that the courts are deferring to the agencies. The problem is the degree of deference. I have no problem with presuming agency policies are valid, provided a plaintiff is afforded the opportunity to rebut that presumption in court.
Yes, Chevron deference made it easier for the EPA to take action against polluters. Chevron Deference also made it effectively impossible for net neutrality proponents to challenge Ajit Pai’s FCC.
The problem isn’t that the courts are deferring to the agencies. The problem is the degree of deference. I have no problem with presuming agency policies are valid, provided a plaintiff is afforded the opportunity to rebut that presumption in court.
Okay, but isn’t the current setup such that deference is only a concern for issues that have already passed through formal law?
I’m not sure I understand your question, but I am going to say “No”. Deference only applies where the law is not specific.
Deference only applies where the law is not specific.
But it only applies to to laws. Unless I misunderstand what you mean by “policies”, it shouldn’t apply there. Since it sounds like you’re worried about overreach due to application of chevron deference, I was trying to see if I followed your train of thought correctly.
In my extremely limited understanding, the issue with the RIFO and Chevron Deference is that the gap is so damned wide with regards to how to regulate the internet that there needs to be a better test than “does the solution proposed in the RIFO fill the gap?” I would consider the RIFO to be such an outlier in cases of chevron deference law that it almost looks like a strawman when compared to other uses of chevron deference. We should definitely shore something up to allow future questioning of the wisdom of courses of action recommended by agencies when consulted in deference matters once the consequences of such deference have come to fruition, but that very possibility (as I understand it) is part of WHY the deference to agencies occurs instead of simply allowing judges to decide. The people at the agencies, being theoretically put in power for a set term, have more to lose from bad decision-making than judges-for-life do.
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I initially didn’t adequately demonstrate my concerns, and differentiate them from those coming from Republicans. People assumed I was a shill.
I’ve added a couple examples to better demonstrate how Chevron overreaches.
I don’t know that this court is the best one to overturn Chevron, but I know it needs to be overturned and replaced with something a little more reasonable.
Wickard v. Filburn also needs a similar degree of correction.
Chevron Deference basically says that the actions of a federal agency cannot be questioned by anyone outside that agency; that the agency is accountable only to itself.
That is not what it says AT ALL.
The very first step is a look at rather or not the agency’s interpretation fits the construction of the statute. Then, the regulation can only be enforced if the agency’s interpretation is reasonable and not arbitrary.
Your interpretation would put policy making in the hands of the courts. You claim that it is what prevented net neutrality from remaining law, but what stops a court from claiming there is no authority to regulate net neutrality at all? What makes you think that a judge would rule against CAFE standards as now enforced? You do realize how packed the judiciary is with right wing judges?
The very first step is a look at rather or not the agency’s interpretation fits the construction of the statute. Then, the regulation can only be enforced if the agency’s interpretation is reasonable and not arbitrary.
No. What you are describing is how deference should work, not how it actually works. If it worked the way you say it does, I would have no problem with it. We are essentially in agreement on what should be happening.
Chevron deference is a two-step test. The first step is whether the statute explicitly authorizes the agency’s actions. If not, the second step asks whether the agency’s policy could conceivably arise from the statute.
The “reasonable” and “not arbitrary” questions you’re talking about only arise after those two steps have been taken. Chevron Deference says that the agency - not the court - is solely responsible for answering those questions.
With net neutrality, the courts ask whether Congress explicitly intended to suspend Net Neutrality, and concludes they did not explicitly require it. They next ask whether suspending net neutrality is a power conveyed to the FCC by statute. Indeed, the FCC should and does have that power. The plaintiff then wishes the court to ask whether the suspension of net neutrality is fair, reasonably, appropriate, not arbitrary, necessary and proper, etc. But, the court points to Chevron Deference and tells the plaintiff that only the agency can answer such questions.
Whether we agree that this is a fair and accurate summary of Chevron Deference, we can agree that the system I just described is not appropriate, while the system you described is appropriate. The fundamental difference between the two systems is whether the courts should or should not be empowered to judge the “reasonableness” of the agency’s interpretation.
You do realize how packed the judiciary is with right wing judges?
The agencies are packed with right wing directors and executives every time we have a GOP president.
While the courts are packed with right-wing judges, plaintiffs in major cases largely avoid them by “shopping” for the judges they want: they can raise their questions in courts known to be friendly to their positions.
You are not correct.
Generally, to be accorded Chevron deference, the agency’s interpretation of an ambiguous statute must be permissible, which the court has defined to mean “rational” or “reasonable.” In determining the reasonableness for the particular construction of a statute by the agency, the age of that administrative interpretation as well as the congressional action or inaction in response to that interpretation at issue can be a useful guide; if Congress was aware of the interpretation when it acted or refrained from action, and when the agency’s interpretation is not inconsistent with the clear statutory language.
https://www.law.cornell.edu/wex/chevron_deference
The agencies are packed with right wing directors
Yes. The the right wing courts will uphold their interpretations and block liberal interpretations, so what will be left is only the conservative interpretation regardless of the president.
Everything except your first sentence is accurate. But if that is your rebuttal, you have failed to understand my argument. I’ll try to restate it for clarity.
Generally, to be accorded Chevron deference, the agency’s interpretation of an ambiguous statute must be permissible, which the court has defined to mean “rational” or “reasonable.”
The test is whether the statute reasonably conveys the power to the agency. Did Congress mean to convey that power to the agency? Did Congress intend for the FCC to have the power to suspend Net Neutrality? Did Congress intend for the NHTSA to have the ability to enact CAFE standards? Did Congress intend for the Bureau of Land Management to have the ability to slaughter entire herds of cattle?
Well, yes, they did. Should certain specific circumstances arise, any of these may become
reasonable“necessary and proper” reactions to those circumstances.Chevron Deference is the idea that once the courts recognize that the agency is “reasonably” empowered to act, the court may not question whether their specific actions are “necessary and proper”. The court can only question whether the agency has the power to act; it cannot question whether that action is appropriate for the circumstances. Only the agency itself is allowed to question whether the action is “necessary and proper.”
So when corrupt FCC commissioners decide to improperly exercise the powers granted to them by Congress, Chevron Deference suspends the constitutional remedy: we cannot petition the court for redress of this grievance.
I still don’t think you get what Chevron Deference does, but whatever. I DO NOT WANT the federal judiciary to decide what is necessary and proper. Those are policy questions for the elected administration and congress, not unelected judges.
Your questions make no sense. Did congress intend for the FCC to suspend Net Neutrality isn’t the question, because congress never directly imposed Net Neutrality. FCC rules on Net Neutrality derived from classifying ISPs as common carriers under Title II of the 1934(!) Communications Act. The question that would go to the courts is did that 90 year old law intend to regulate the internet to begin with? Plenty of conservatives will say no.
You seem to be under the impression that laws have no ambiguity and that congress’s intentions are clear. They are not. The original case we get Chevron Deference was with regard to the Clean Air Act talking about “stationary sources” of pollution, a term not defined in the law. The EPA originally interpreted that as each source at a particular plant, requiring new licenses for every addition. The Reagan EPA changed the interpretation to a stationary source as a whole plant, and thus allowed expansion without new permits if emissions would not increase. Both frankly are reasonable interpretations. So the case ruled they should defer to the agency rather than tackle a policy question.
You may think we have facts on out side, but all the judges appointed by W Bush and Trump, of which there are legion, will not side with facts, they will bend the ambiguity to stop any liberal policy they disagree with.
Your questions make no sense. Did congress intend for the FCC to suspend Net Neutrality isn’t the question, because congress never directly imposed Net Neutrality.
Your understanding of my question is faulty. I did not ask if Congress intended for the FCC to suspend net neutrality. I asked if Congress intended for the FCC to have the power to suspend net neutrality. The answer is yes, that power is well within the FCC’s charter.
I DO NOT WANT the federal judiciary to decide what is necessary and proper.
Your position here directly contradicts virtually all of Article III, and effectively strips the people of their power to petition for redress of grievances. Your position is constitutionally invalid. Constitutionally, the court’s power to make this determination is a vital check on the other two branches. Your unhappiness with the current composition of the courts is not a sufficient justification for suspending this check.
I asked if Congress intended for the FCC to have the power to suspend net neutrality. The answer is yes
The answer is not unambiguously yes! Again, net neutrality is based on a law decades older than the internet. It would be trivial for a judge to say the FCC doesn’t even have the power to enforce Net Neutrality at all!
And it does not override Article III. Again, all regulations have to reasonably follow the law. That is the line for the courts, are they following the law or not. Going beyond that, answering policy questions, contradicts Articles I and II.
You are far too confident judges will rule in your favor.
