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>Congress knows that it does not—in fact cannot—write perfectly complete regulatory statutes... Why not? Why can't Congress write complete regulatory statutes

by 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.
  - jf22 2y ago
    Ok so now let's challenge what trained means, and what professional means, and what observer means, and what regulated means, and what fishing means, and what vessels mean and so on and so forth.
    - kogus 2y ago
      I would be surprised if courts had not already heard and decided cases on the meaning of all those terms. But if they haven’t, then sure I guess they should. But precedent means they would only have to be decided once, not repeatedly litigated over and over as you seem to suggest.
      - jf22 2y ago
        >But precedent means they would only have to be decided once I find it interesting we are discussing a case where precedent was overturned, and you are suggesting precedent will fix something.
  - crazygringo 2y ago
    > That is a straw man. 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. But laws can't do that in infinite detail. It's literally impossible. So it's not a straw man at all -- that was my point. At some point, regulatory agencies, like anything in the executive branch, have to decide for themselves how to get their job done. Because they have to do that a million times every day. If Congress didn't specify who will pay for the observers, it makes much more sense to leave it up to the agency than to the courts, except in cases of obvious abuse, corruption, etc. -- which this does not appear to be. I agree it sucks that the fishing vessels have to pay for the observers, but it seems obvious to me that the body to fix that is Congress. If the fishing industry can't get the agency to change it, then they should be contacting their Congressional representatives to change it. And Congress either will or won't, but that's literally who is in charge of this. It seems like a strange issue for the courts to get involved with, because there's no conflict with other laws or with the constitution.
- logicchains 2y ago
  Congress isn't the CEO, the president is the CEO. Congress is the body responsible for writing the company's policy documents.
  - tedd4u 2y ago
    Yes. In an analogy to a corporation, the Congress is the Board, and the President is CEO. The board approves the corporate bylaws, the Congress approves the laws.
- somenameforme 2y ago
  This does not change that in the least. What changes is that if e.g. the FDA is acting in a way that does not seem to fall within their legal mandate, then people have more freedom to take legal action to ensure they fall back to within that mandate. And I think this is extremely important. The United States it not a dictatorship. People should have the right to challenge organizations which seem to be going beyond (or even against) their legal mandate. If Congress is unhappy with how this plays out, they're completely free to clarify any sections that get challenged.
vharuck 2y ago
>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. Kagan agrees that executive agents are more political and shorter-lived than judges. Which is part of why she dissented. A federal judge has no constituents, no chance for replacement if the will of the people is ignored. A bureaucrat is appointed by an elected President, so there's at least an indirect avenue for accountability by the people. >If the law is ambiguous, courts must resolve the ambiguity. If it's a matter of law, the courts did resolve disputes in step one of the Chevron deference system. Federal Judges are considered experts in law and Congressional actions. If the dispute falls outside of the legal framework (e.g., Kagan's examples of which new polymers count as proteins, or reasonable ways to return the sound level in a national Park to a near-natural state), then the judge went to step two of Chevron deference: defer to the subject-matter experts in the agency. It is ridiculous to expect a judge to get a crash course in hundreds of complex fields that could actually prepare him or her for an informed ruling. Deferring to the people who've studied and practiced the topics seems like the better choice.

by kogus 2y ago

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.
- jf22 2y ago
  Ok so now let's challenge what trained means, and what professional means, and what observer means, and what regulated means, and what fishing means, and what vessels mean and so on and so forth.
  - kogus 2y ago
    I would be surprised if courts had not already heard and decided cases on the meaning of all those terms. But if they haven’t, then sure I guess they should. But precedent means they would only have to be decided once, not repeatedly litigated over and over as you seem to suggest.
    - jf22 2y ago
      >But precedent means they would only have to be decided once I find it interesting we are discussing a case where precedent was overturned, and you are suggesting precedent will fix something.
- crazygringo 2y ago
  > That is a straw man. 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. But laws can't do that in infinite detail. It's literally impossible. So it's not a straw man at all -- that was my point. At some point, regulatory agencies, like anything in the executive branch, have to decide for themselves how to get their job done. Because they have to do that a million times every day. If Congress didn't specify who will pay for the observers, it makes much more sense to leave it up to the agency than to the courts, except in cases of obvious abuse, corruption, etc. -- which this does not appear to be. I agree it sucks that the fishing vessels have to pay for the observers, but it seems obvious to me that the body to fix that is Congress. If the fishing industry can't get the agency to change it, then they should be contacting their Congressional representatives to change it. And Congress either will or won't, but that's literally who is in charge of this. It seems like a strange issue for the courts to get involved with, because there's no conflict with other laws or with the constitution.
logicchains 2y ago
Congress isn't the CEO, the president is the CEO. Congress is the body responsible for writing the company's policy documents.
- tedd4u 2y ago
  Yes. In an analogy to a corporation, the Congress is the Board, and the President is CEO. The board approves the corporate bylaws, the Congress approves the laws.
somenameforme 2y ago
This does not change that in the least. What changes is that if e.g. the FDA is acting in a way that does not seem to fall within their legal mandate, then people have more freedom to take legal action to ensure they fall back to within that mandate. And I think this is extremely important. The United States it not a dictatorship. People should have the right to challenge organizations which seem to be going beyond (or even against) their legal mandate. If Congress is unhappy with how this plays out, they're completely free to clarify any sections that get challenged.

vharuck 2y ago

>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. Kagan agrees that executive agents are more political and shorter-lived than judges. Which is part of why she dissented. A federal judge has no constituents, no chance for replacement if the will of the people is ignored. A bureaucrat is appointed by an elected President, so there's at least an indirect avenue for accountability by the people. >If the law is ambiguous, courts must resolve the ambiguity. If it's a matter of law, the courts did resolve disputes in step one of the Chevron deference system. Federal Judges are considered experts in law and Congressional actions. If the dispute falls outside of the legal framework (e.g., Kagan's examples of which new polymers count as proteins, or reasonable ways to return the sound level in a national Park to a near-natural state), then the judge went to step two of Chevron deference: defer to the subject-matter experts in the agency. It is ridiculous to expect a judge to get a crash course in hundreds of complex fields that could actually prepare him or her for an informed ruling. Deferring to the people who've studied and practiced the topics seems like the better choice.