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This is a complete disaster. The ramifications will be felt for decades. Now businesses must factor in the uncertainty of any random person launching a lawsuit

This is a complete disaster. The ramifications will be felt for decades. Now businesses must factor in the uncertainty of any random person launching a lawsuit that causes a local court to reverse a federal agency policy. Huge potential impacts to product / revenue, not just legal fees to fight everything. And immeasurable impacts of cowing all bold business decisions to avoid the ire of any person or group, no matter how niche or extreme. Even if a new supreme court reverts this decision, now people are going to be concerned about the unpredictability of the Supreme Court.

tiahura 2y ago
How would a random person have standing?
- tstrimple 2y ago
  Standing doesn’t matter. A conservative website creator was able to take a case all the way up to the Supreme Court without ever have been sued. They just made up a situation where an alleged customer demanded they make a gay website. The customer never even existed. This is on top of the Supreme Court literally legalizing bribing of government officials across the country as long as the payment is made after the favor and not before. Then it’s just a gratuity and not a bribe. The entire system is rotten at this point.
  - avar 2y ago
    That website creator sued their state's regulatory agency, and "sufficiently demonstrated both an intent to provide graphic and web design services to the public in a manner that exposes them to [Colorado Anti-Discrimination Act] liability, and a credible threat that Colorado will prosecute them under that statute."[1] Yes, the alleged "situation" may have been contrived, but that doesn't change whether they have standing to sue their state to challenge what they see as an unconstitutional law. Do you think their only recourse should be to break the law, and risk the penalties associated with that if it does turn out to be constitutional? 1. https://en.wikipedia.org/wiki/303_Creative_LLC_v._Elenis https://en.wikipedia.org/wiki/303_Creative_LLC_v._Elenis
    - anigbrowl 2y ago
      The strange thing there is that for a few decades now federal courts have required a plaintiff to have suffered some sort of injury before they can sue, and the notion that a credible threat is equivalent to such injury seems to overstretch that concept. https://harvardlawreview.org/print/vol-136/standing-in-the-way-the-courts-escalating-interference-in-federal-policymaking/#footnote-ref-16 https://harvardlawreview.org/print/vol-136/standing-in-the-w...
      - avar 2y ago
        The ADF compiled a short history of pre-enforcement challenges going back to the 1920s[1]. They're not common, but weren't novel in this case. 1. https://adfmedialegalfiles.blob.core.windows.net/files/PreEnforcementChallengesBackgrounder.pdf https://adfmedialegalfiles.blob.core.windows.net/files/PreEn...
      - Darrengineer 2y ago
        Also, the ‘credible threat’ of being prosecuted was based on the agency simply declining to state that it would not sue if Smith violated the law. Seeing as no such violation of the law had even been alleged, it seems incredibly flimsy to say there was a threat at all, let alone a credible threat.
erichocean 2y ago
> now people are going to be concerned about the unpredictability of the Supreme Court The Supreme Court has been reversing itself since the country's inception. I think we'll survive it making corrections in the future.
baryphonic 2y ago
I fail to see how this parade of horribles will happen. Under the Chevron regime, any random person could still sue, and provided that the lawsuit survived an initial motion to dismiss, then any questions involving an administrative agency policy would defer to that agency's interpretation of their own policy and the law authorizing that policy. The only change now is that the agency will have to demonstrate to an independent Article III court that its policy is correct and compatible with the authorizing law. Stare decisis will still control the lower courts once new precedents are set, and people will have meaningful appeals again. There might be some disruption in the short term, but in a decade or two, I expect the new normal will be fine, but with the benefit that people can meaningfully appeal self-aggrandizing administrative state rulings.
genghisjahn 2y ago
All of us are random people.
Gormo 2y ago
> Now businesses must factor in the uncertainty of any random person launching a lawsuit that causes a local court to reverse a federal agency policy. Huge potential impacts to product / revenue, not just legal fees to fight everything Businesses already have to deal with frequent litigation, including class-action lawsuits even in areas that overlap with regulatory agencies. Quite to the contrary of what you are suggesting, reversing Chevron doctrine will allow the courts to develop a body of solid precedent surrounding these areas of law, and create a more stable legal framework, rather than the status quo of opaque, politicized agencies having the power to re-interpret their authority and change the regulatory environment at their own prerogative -- stare decisis doesn't apply to executive agencies, but it certainly does apply to the courts.
- sanktanglia 2y ago
  oh yeah because our courts have definitely shown themselves to be non partisan, like how one of the republican supreme court justices thinks they are at war ideologically against the other side and must win
- idkwhatimdoin 2y ago
  Except this and other rulings mean there's no such thing as "solid precedent" anymore.
  - imchillyb 2y ago
    The moment a court is asked to make a decision on one of these matters there will then be case-building precedent. What your comment suggests is that there will _never_ be 'solid precedent' which is an inaccurate interpretation.
    - idkwhatimdoin 2y ago
      You're literally staring at the courts dismantling several decades long precedent, though?
      - 2y ago
icelancer 2y ago
> Now businesses must factor in the uncertainty of any random person launching a lawsuit that causes a local court to reverse a federal agency policy. Spurious lawsuits annoying small businesses is already the case in America. I've defended against plenty of them. The concept of someone using random lawsuits to target local courts to overturn federal agency policy is very far removed from a businessowner's mind compared to the other types of litigation that actually happens on a regular basis.
- mushufasa 2y ago
  Think bigger. You're NovoNordisk. FDA says ozempic is safe for use. A local California court bans it because they say it hasn't been properly tested and endangers Californians. Billion dollar market, wiped off the map. Now New York is following path. You can try to fight it but either way you've suffered incredible repetitional damage: FUD (fear uncertainty and denial) is now forevermore "the drug that California banned for being unsafe." Or, imagine a texas court banning COVID vaccines. These are not hypotheticals, these are real court cases that could now swing against agencies. Whatever your opinion on specific factual matters, everyone should be concerned about widespread disorder.
o11c 2y ago
We also need to consider that the chance of another Andrew Jackson approaches 100% the more this unhinged court does this.

tiahura 2y ago

How would a random person have standing?

tstrimple 2y ago
Standing doesn’t matter. A conservative website creator was able to take a case all the way up to the Supreme Court without ever have been sued. They just made up a situation where an alleged customer demanded they make a gay website. The customer never even existed. This is on top of the Supreme Court literally legalizing bribing of government officials across the country as long as the payment is made after the favor and not before. Then it’s just a gratuity and not a bribe. The entire system is rotten at this point.
- avar 2y ago
  That website creator sued their state's regulatory agency, and "sufficiently demonstrated both an intent to provide graphic and web design services to the public in a manner that exposes them to [Colorado Anti-Discrimination Act] liability, and a credible threat that Colorado will prosecute them under that statute."[1] Yes, the alleged "situation" may have been contrived, but that doesn't change whether they have standing to sue their state to challenge what they see as an unconstitutional law. Do you think their only recourse should be to break the law, and risk the penalties associated with that if it does turn out to be constitutional? 1. https://en.wikipedia.org/wiki/303_Creative_LLC_v._Elenis https://en.wikipedia.org/wiki/303_Creative_LLC_v._Elenis
  - anigbrowl 2y ago
    The strange thing there is that for a few decades now federal courts have required a plaintiff to have suffered some sort of injury before they can sue, and the notion that a credible threat is equivalent to such injury seems to overstretch that concept. https://harvardlawreview.org/print/vol-136/standing-in-the-way-the-courts-escalating-interference-in-federal-policymaking/#footnote-ref-16 https://harvardlawreview.org/print/vol-136/standing-in-the-w...
    - avar 2y ago
      The ADF compiled a short history of pre-enforcement challenges going back to the 1920s[1]. They're not common, but weren't novel in this case. 1. https://adfmedialegalfiles.blob.core.windows.net/files/PreEnforcementChallengesBackgrounder.pdf https://adfmedialegalfiles.blob.core.windows.net/files/PreEn...
    - Darrengineer 2y ago
      Also, the ‘credible threat’ of being prosecuted was based on the agency simply declining to state that it would not sue if Smith violated the law. Seeing as no such violation of the law had even been alleged, it seems incredibly flimsy to say there was a threat at all, let alone a credible threat.

erichocean 2y ago

> now people are going to be concerned about the unpredictability of the Supreme Court The Supreme Court has been reversing itself since the country's inception. I think we'll survive it making corrections in the future.

baryphonic 2y ago

I fail to see how this parade of horribles will happen. Under the Chevron regime, any random person could still sue, and provided that the lawsuit survived an initial motion to dismiss, then any questions involving an administrative agency policy would defer to that agency's interpretation of their own policy and the law authorizing that policy. The only change now is that the agency will have to demonstrate to an independent Article III court that its policy is correct and compatible with the authorizing law. Stare decisis will still control the lower courts once new precedents are set, and people will have meaningful appeals again. There might be some disruption in the short term, but in a decade or two, I expect the new normal will be fine, but with the benefit that people can meaningfully appeal self-aggrandizing administrative state rulings.

genghisjahn 2y ago

All of us are random people.

Gormo 2y ago

> Now businesses must factor in the uncertainty of any random person launching a lawsuit that causes a local court to reverse a federal agency policy. Huge potential impacts to product / revenue, not just legal fees to fight everything Businesses already have to deal with frequent litigation, including class-action lawsuits even in areas that overlap with regulatory agencies. Quite to the contrary of what you are suggesting, reversing Chevron doctrine will allow the courts to develop a body of solid precedent surrounding these areas of law, and create a more stable legal framework, rather than the status quo of opaque, politicized agencies having the power to re-interpret their authority and change the regulatory environment at their own prerogative -- stare decisis doesn't apply to executive agencies, but it certainly does apply to the courts.

sanktanglia 2y ago
oh yeah because our courts have definitely shown themselves to be non partisan, like how one of the republican supreme court justices thinks they are at war ideologically against the other side and must win
idkwhatimdoin 2y ago
Except this and other rulings mean there's no such thing as "solid precedent" anymore.
- imchillyb 2y ago
  The moment a court is asked to make a decision on one of these matters there will then be case-building precedent. What your comment suggests is that there will _never_ be 'solid precedent' which is an inaccurate interpretation.
  - idkwhatimdoin 2y ago
    You're literally staring at the courts dismantling several decades long precedent, though?
    - 2y ago

icelancer 2y ago

> Now businesses must factor in the uncertainty of any random person launching a lawsuit that causes a local court to reverse a federal agency policy. Spurious lawsuits annoying small businesses is already the case in America. I've defended against plenty of them. The concept of someone using random lawsuits to target local courts to overturn federal agency policy is very far removed from a businessowner's mind compared to the other types of litigation that actually happens on a regular basis.

mushufasa 2y ago
Think bigger. You're NovoNordisk. FDA says ozempic is safe for use. A local California court bans it because they say it hasn't been properly tested and endangers Californians. Billion dollar market, wiped off the map. Now New York is following path. You can try to fight it but either way you've suffered incredible repetitional damage: FUD (fear uncertainty and denial) is now forevermore "the drug that California banned for being unsafe." Or, imagine a texas court banning COVID vaccines. These are not hypotheticals, these are real court cases that could now swing against agencies. Whatever your opinion on specific factual matters, everyone should be concerned about widespread disorder.

o11c 2y ago

We also need to consider that the chance of another Andrew Jackson approaches 100% the more this unhinged court does this.