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From Justice Kagan's dissent on page 82: > This Court has long understood Chevron deference to reflect what Congress would want, and so to be rooted in a presu

From Justice Kagan's dissent on page 82: > 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.

adamc 2y ago
Our court is now activist in a very regressive way. The ride is going to be a very bumpy one until it generates sufficient pushback.
xbar 2y ago
I would prefer if this conservative court would review the constitution and conclude that it must revoke its own right of judicial review.
- mmanfrin 2y ago
  Turns out the notions of jurisprudence they claim to represent is all a farce for pushing specific political agendas after all.
  - davidw 2y ago
    It's all "calvinball".
  - paulmd 2y ago
    I was thinking yesterday what a mockery of the concept of justiceability some of their past decisions have made. Like the court is forced into a Sophie’s choice on whether to agree to let a Captain Planet villain go free or let the lawyers drain the fund. And the court could also just flatly do a “in a one-time non-precedent-setting ruling, those assets are obviously still under your control and companies cannot indemnify individuals against actual knowing wrongdoing”… but that would never be used in that way for the benefit of mere plebs. But it does throw the whole idea of injusticeable claims right out the window. Bush had no claim at all, he literally still got thrown the election in a special one-time-ruling. What they did was a valid exercise of their power, just an extremely distasteful one. Right? As such, they’re literally, by the text of the constitution, an unjusticeable claim. The concept is facially incoherent, the court can justice anything it wants. The things they choose not to address, literally are because they’re things they don’t care about using their assumed powers to address. They literally invented the whole concept of a “one-off calvinball ruling” and formalized the concept already. Just your friendly "textualist" wing at work.
- kemayo 2y ago
  It would be the funniest "textualist" outcome, certainly. Every time I hear some disparaging comment about "the penumbra of the constitution" from the conservative justices, I can't help but roll my eyes because of that.
remarkEon 2y ago
> 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... I really hope she meant to convey a different point here, because it reads as if congress doesn't care and wants unelected bureaucrats figuring out what laws mean because they themselves know they suck at writing those laws. If that is the case, then why even have congress?
- consumer451 2y ago
  While members of federal agencies are not elected, their heads are appointed by elected officials. I never understood the whole "un-elected officials" argument. How many people should we have on the ballot? 10s of thousands?
  - remarkEon 2y ago
    That isn't the point. My government is supposed to have it's rules made by one body, congress. It's very strange to me that there's a large contingent of people - even some who pretend to be lawyers - who think that it's fine that some random guy that gets hired through a political appointment by the executive is the one actually making the rules.
- deleted 2y ago
  [deleted]
- tzs 2y ago
  You've misunderstood what she's saying. For many issues it is not possible for Congress to write laws that are simultaneously completely unambiguous and actually deal with whatever issue they are trying to deal with. Actually applying the law almost always involves numerous decisions to fill in some of the gaps.
- aport 2y ago
  I would much rather unelected bureaucrat scientists decide how to implement the intent and application of laws than congress.
Avshalom 2y ago
https://harvardlawreview.org/forum/vol-136/the-imperial-supreme-court/ https://harvardlawreview.org/forum/vol-136/the-imperial-supr...
alfalfasprout 2y ago
On the flip side-- congress often will pass regulation with the very intent to allow ambiguity so that the regulatory agency will have extreme latitude often against the will of the people. Or a regulatory agency will grossly stretch their mandate to overstep what they are effectively allowed to regulate and interpret. Since there effectively minimal judicial checks and balances against that behavior that's also not desirable either. Just look at the farcical interpretations from the ATF in recent years that have sent innocent folks to prison for having a completely non-functional design of a gun part on a business card to prison. Or classifying a shoe string as a machine gun. These folks have had little to no recourse in court due to the ATF's broad unchecked discretion.
- vundercind 2y ago
  To anyone wondering, to save you some googling: yes, both the mentioned instances aren’t obviously-unreasonable in context. One was someone formally asking the ATF whether it’d be illegal if they made a machine gun with a shoe string, and would that shoe string then be an illegal machine gun part and the ATF going “yeah, duh” and the other was someone seeing exactly how close they could get to selling machine gun conversion parts without crossing the line, and the karmic principle of FAFO kicked in.
lolinder 2y ago
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.
- immibis 2y ago
  It won't force Congress to do shit. The same flip flop will still happen, but instead of 4-year executive terms, it will be driven by lifetime court appointments. The court is going to remain Republican for the foreseeable future, unlike the presidency.
  - sattoshi 2y ago
    Whats the problem? If congress disagrees with what the courts did to fill in the blanks in their laws, they just need to pass new laws.
    - 2y ago
gamblor956 2y ago
The Roberts Court just decided to increase Congress' workload 100000x. This is one of those rulings that is going to get overturned in a few decades when it turns out to be completely unworkable to have Congress be subject-matter experts in thousands of areas. In 10 years when people wonder why their rivers are glowing green and everything in the ground is dying and there's a weird smell in the air, and corporations are just allowed to decide you pay them for no services and there's nothing you can do about it...this decision is going to be the reason. It looks like Thomas' and Alito's benefactors finally got what they spent most of the last decade trying to buy.
- slackfan 2y ago
  100000 * 0 is still 0
diebeforei485 2y ago
I'd rather the Supreme Court exercise judicial hubris once every 50 years than new administrations exercise administrative hubris every 4 years.
kogus 2y ago
>Congress knows that it does not—in fact cannot—write perfectly complete regulatory statutes... Why not? Why can't Congress write complete regulatory statutes? Isn't that literally their job? Yes, it is. "Chevron defense" has been a way for Congress to shirk its duty for decades. If the law is ambiguous, courts must resolve the ambiguity. That is exactly what courts are for. To say that it would be better for an opaque, appeal-proof bureaucracy to have the final say was a ludicrous step on the path to our ever-growing executive tumor. The tone of your quotes from Kagan give the impression that federal agencies are "responsible" and able to use "discretion". But agencies are political animals, subject to the whims of the current president, who can potentially change every four years. Courts are much slower to change, and much less vulnerable to the political whims of the current administration. So many people are polarized and focused on winning presidential elections so they have their hands on the levers, that they never question whether the levers should be there in the first place. Perhaps politics would not be so polarized if the President did not have so much power, and the stakes were not so high.
- crazygringo 2y ago
  > Why can't Congress write complete regulatory statutes? Isn't that literally their job? Yes, it is. No, it's not. That's like saying it's the CEO's job to write every design document in a company. It not only doesn't make sense -- it's not even possible from a perspective of information throughput. It sounds like you're saying that Congress should approve drugs rather than the FDA. Absolutely not. Congress should write the regulations that govern how the FDA operates, and then the FDA should operate. And let's remember -- if Congress doesn't like what a regulatory agency is doing, it can pass legislation to change that. If it doesn't, we can assume it approves. Therefore the courts have no business stepping in -- except obviously when there is genuine conflict between laws or with the constitution. But that's not what you're talking about.
  - kogus 2y ago
    I do not expect Congress to atomically approve or disapprove every regulatory action. That is a straw man. I expect them to write clear laws that state what agencies can do, what they cannot do, and how they should do it. The case before the court is a good example of how the opaque and unaccountable nature of a federal agency allows them to serve their own self-interest at the expense of the citizens they are supposed to protect. Specifically, Congress specified in law that "authorizes the government to require trained, professional observers on regulated fishing vessels". But their law did not specify who would pay for these observers. So under Chevron, the agency got to decide. And, shocker! They decided they did not have to pay for it. This ruling stops that specific abuse, and hopefully many others. The actions of federal agencies is not generally a thing to be desired.
goodluckchuck 2y ago
> implicit congressional delegation of interpretive authority That’s not constitutional.
w10-1 2y ago
Justice Kagan for the longest time has been the liberal that tried to reconcile with the rest of the court. But she delivered her dissent orally and framed it broadly, signaling that there is no possibility of reconciliation. That unfortunately will lead to less balanced decisions. As for Chevron, this decision vastly expands the scope of political franchises by putting a brief review by a single (lifetime-appointed) federal judge on par with the entire administrative law process with hundreds of stakeholders and experts. It's not a win for rationality or settled expectations; it injects risk into every regulated field.
deleted 2y ago
[deleted]

adamc 2y ago

Our court is now activist in a very regressive way. The ride is going to be a very bumpy one until it generates sufficient pushback.

xbar 2y ago

I would prefer if this conservative court would review the constitution and conclude that it must revoke its own right of judicial review.

mmanfrin 2y ago
Turns out the notions of jurisprudence they claim to represent is all a farce for pushing specific political agendas after all.
- davidw 2y ago
  It's all "calvinball".
- paulmd 2y ago
  I was thinking yesterday what a mockery of the concept of justiceability some of their past decisions have made. Like the court is forced into a Sophie’s choice on whether to agree to let a Captain Planet villain go free or let the lawyers drain the fund. And the court could also just flatly do a “in a one-time non-precedent-setting ruling, those assets are obviously still under your control and companies cannot indemnify individuals against actual knowing wrongdoing”… but that would never be used in that way for the benefit of mere plebs. But it does throw the whole idea of injusticeable claims right out the window. Bush had no claim at all, he literally still got thrown the election in a special one-time-ruling. What they did was a valid exercise of their power, just an extremely distasteful one. Right? As such, they’re literally, by the text of the constitution, an unjusticeable claim. The concept is facially incoherent, the court can justice anything it wants. The things they choose not to address, literally are because they’re things they don’t care about using their assumed powers to address. They literally invented the whole concept of a “one-off calvinball ruling” and formalized the concept already. Just your friendly "textualist" wing at work.
kemayo 2y ago
It would be the funniest "textualist" outcome, certainly. Every time I hear some disparaging comment about "the penumbra of the constitution" from the conservative justices, I can't help but roll my eyes because of that.

remarkEon 2y ago

> 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... I really hope she meant to convey a different point here, because it reads as if congress doesn't care and wants unelected bureaucrats figuring out what laws mean because they themselves know they suck at writing those laws. If that is the case, then why even have congress?

consumer451 2y ago
While members of federal agencies are not elected, their heads are appointed by elected officials. I never understood the whole "un-elected officials" argument. How many people should we have on the ballot? 10s of thousands?
- remarkEon 2y ago
  That isn't the point. My government is supposed to have it's rules made by one body, congress. It's very strange to me that there's a large contingent of people - even some who pretend to be lawyers - who think that it's fine that some random guy that gets hired through a political appointment by the executive is the one actually making the rules.
deleted 2y ago
[deleted]
tzs 2y ago
You've misunderstood what she's saying. For many issues it is not possible for Congress to write laws that are simultaneously completely unambiguous and actually deal with whatever issue they are trying to deal with. Actually applying the law almost always involves numerous decisions to fill in some of the gaps.
aport 2y ago
I would much rather unelected bureaucrat scientists decide how to implement the intent and application of laws than congress.

Avshalom 2y ago

https://harvardlawreview.org/forum/vol-136/the-imperial-supreme-court/ https://harvardlawreview.org/forum/vol-136/the-imperial-supr...

alfalfasprout 2y ago

On the flip side-- congress often will pass regulation with the very intent to allow ambiguity so that the regulatory agency will have extreme latitude often against the will of the people. Or a regulatory agency will grossly stretch their mandate to overstep what they are effectively allowed to regulate and interpret. Since there effectively minimal judicial checks and balances against that behavior that's also not desirable either. Just look at the farcical interpretations from the ATF in recent years that have sent innocent folks to prison for having a completely non-functional design of a gun part on a business card to prison. Or classifying a shoe string as a machine gun. These folks have had little to no recourse in court due to the ATF's broad unchecked discretion.

vundercind 2y ago
To anyone wondering, to save you some googling: yes, both the mentioned instances aren’t obviously-unreasonable in context. One was someone formally asking the ATF whether it’d be illegal if they made a machine gun with a shoe string, and would that shoe string then be an illegal machine gun part and the ATF going “yeah, duh” and the other was someone seeing exactly how close they could get to selling machine gun conversion parts without crossing the line, and the karmic principle of FAFO kicked in.

lolinder 2y ago

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.

immibis 2y ago
It won't force Congress to do shit. The same flip flop will still happen, but instead of 4-year executive terms, it will be driven by lifetime court appointments. The court is going to remain Republican for the foreseeable future, unlike the presidency.
- sattoshi 2y ago
  Whats the problem? If congress disagrees with what the courts did to fill in the blanks in their laws, they just need to pass new laws.
  - 2y ago

gamblor956 2y ago

The Roberts Court just decided to increase Congress' workload 100000x. This is one of those rulings that is going to get overturned in a few decades when it turns out to be completely unworkable to have Congress be subject-matter experts in thousands of areas. In 10 years when people wonder why their rivers are glowing green and everything in the ground is dying and there's a weird smell in the air, and corporations are just allowed to decide you pay them for no services and there's nothing you can do about it...this decision is going to be the reason. It looks like Thomas' and Alito's benefactors finally got what they spent most of the last decade trying to buy.

slackfan 2y ago
100000 * 0 is still 0

diebeforei485 2y ago

I'd rather the Supreme Court exercise judicial hubris once every 50 years than new administrations exercise administrative hubris every 4 years.

kogus 2y ago

>Congress knows that it does not—in fact cannot—write perfectly complete regulatory statutes... Why not? Why can't Congress write complete regulatory statutes? Isn't that literally their job? Yes, it is. "Chevron defense" has been a way for Congress to shirk its duty for decades. If the law is ambiguous, courts must resolve the ambiguity. That is exactly what courts are for. To say that it would be better for an opaque, appeal-proof bureaucracy to have the final say was a ludicrous step on the path to our ever-growing executive tumor. The tone of your quotes from Kagan give the impression that federal agencies are "responsible" and able to use "discretion". But agencies are political animals, subject to the whims of the current president, who can potentially change every four years. Courts are much slower to change, and much less vulnerable to the political whims of the current administration. So many people are polarized and focused on winning presidential elections so they have their hands on the levers, that they never question whether the levers should be there in the first place. Perhaps politics would not be so polarized if the President did not have so much power, and the stakes were not so high.

crazygringo 2y ago
> Why can't Congress write complete regulatory statutes? Isn't that literally their job? Yes, it is. No, it's not. That's like saying it's the CEO's job to write every design document in a company. It not only doesn't make sense -- it's not even possible from a perspective of information throughput. It sounds like you're saying that Congress should approve drugs rather than the FDA. Absolutely not. Congress should write the regulations that govern how the FDA operates, and then the FDA should operate. And let's remember -- if Congress doesn't like what a regulatory agency is doing, it can pass legislation to change that. If it doesn't, we can assume it approves. Therefore the courts have no business stepping in -- except obviously when there is genuine conflict between laws or with the constitution. But that's not what you're talking about.
- kogus 2y ago
  I do not expect Congress to atomically approve or disapprove every regulatory action. That is a straw man. I expect them to write clear laws that state what agencies can do, what they cannot do, and how they should do it. The case before the court is a good example of how the opaque and unaccountable nature of a federal agency allows them to serve their own self-interest at the expense of the citizens they are supposed to protect. Specifically, Congress specified in law that "authorizes the government to require trained, professional observers on regulated fishing vessels". But their law did not specify who would pay for these observers. So under Chevron, the agency got to decide. And, shocker! They decided they did not have to pay for it. This ruling stops that specific abuse, and hopefully many others. The actions of federal agencies is not generally a thing to be desired.

goodluckchuck 2y ago

> implicit congressional delegation of interpretive authority That’s not constitutional.

w10-1 2y ago

Justice Kagan for the longest time has been the liberal that tried to reconcile with the rest of the court. But she delivered her dissent orally and framed it broadly, signaling that there is no possibility of reconciliation. That unfortunately will lead to less balanced decisions. As for Chevron, this decision vastly expands the scope of political franchises by putting a brief review by a single (lifetime-appointed) federal judge on par with the entire administrative law process with hundreds of stakeholders and experts. It's not a win for rationality or settled expectations; it injects risk into every regulated field.

deleted 2y ago

[deleted]