8 ms·

Re: Supreme Court's Loper decision: offer some thought someone who has litigated

45 points by bilsbie 2y ago

shrubble 2y ago
If I understand the origin of the case, a Federal agency decided that fishing boats had to bear the costs, some $700/day, of a mandatory monitor (usually a person with marine biology and stats knowledge, I think) that travels on the boat. So every week the boat is operating, is another $3500 in costs added on. This was not something that was in the law, it was decision made by the agency to shift costs off their budget and onto the companies they regulate.
- 39896880 2y ago
  Except the law did contain the provision for this fee. The Magnuson–Stevens Fishery Conservation and Management Act included a “Necessary and Proper” clause that mirrors the Constitution’s, yet the Supreme Court decided that Congress’ ability under that clause doesn’t extend beyond itself. Despite the “History and Tradition” of this delegation, and despite the fact that such powers are literally written in the constitution itself. It seems we are inching closer to a world where it would require a constitutional amendment to make traffic laws.
  - kyrra 2y ago
    Do you have links to back up this argument? Anyone that actually cited the parts of th law and and explained how scotus got it wrong?
    - 39896880 2y ago
      “ A split in decisions among federal appeals courts has set the stage for possibly overturning the Chevron deference. In its ruling on the Cape May fishermen’s case, the First Circuit Court of Appeals in Washington, D.C., “decided that broad ‘necessary and appropriate’ language in the Magnuson-Stevens Act, which governs U.S. fisheries, augmented the agency’s regulatory power,” according to a narrative from the New Civil Liberties Alliance. “It then relied heavily on Chevron deference to uphold the agency’s ostensibly reasonable interpretation of a supposedly ambiguous federal statute.” https://www.nationalfisherman.com/national-international/supreme-court-hears-fishermen-s-challenge-that-could-upend-agency-powers https://www.nationalfisherman.com/national-international/sup... Here’s the necessary and proper clause: https://constitution.congress.gov/browse/essay/artI-S8-C18-1/ALDE_00001242/#:~:text=To%20make%20all%20Laws%20which,any%20Department%20or%20Officer%20thereof https://constitution.congress.gov/browse/essay/artI-S8-C18-1.... It’s hard to square “well congress didn’t intend for them to have that power” when they quoted their own damn rules when they wrote the law. But again, SCOTUS decided Congress doesn’t have that power.
      - shrubble 2y ago
        When there is a split among Federal courts then the SCOTUS does often step in. The SCOTUS decision was that the interpretation of the First Circuit was wrong. FWIW it says "the Congress shall have power..." not unelected bureaucrats of any stripe. In the event the issue about "unbiased experts" is raised, remember that the case is about "who should pay" not that there should or should not be monitors on the boat.
        AnimalMuppet 2y ago
        A "split decision" is not the same as a "split among Federal courts". A split decision just means the appeals court (one Federal district) ruled 2-1 rather than 3-0. A split among Federal courts means that different districts ruled in different ways.
        shrubble 2y ago
        Yes, that is correct; it's worded somewhat clumsily in the parent quote.
  - stackskipton 2y ago
    >Except the law did contain the provision for this fee. Incorrect. The law has provisions of this kind of fee for other types of fish, it was silent on herring which these boats were fishing for. Historically, the government had been funding these monitors until budget cuts made no longer possible. So, agency created a rule that since while law says monitors are required and we can't pay for it, the industry must now pay for it. Industry sued and here we are.
    - collingreen 2y ago
      I don't know anything about the legal side of any of this convo but your "Incorrect" followed up by saying in apparent seriousness that there are laws for fish but not THIS PARTICULAR kind of fish made me actually laugh out loud. Internet comments have the funniest versions of good and bad faith.
      - stackskipton 2y ago
        But that's entire debate in the case with SCOTUS and this is a ton of US law. Section A/B/C says these kind of fish boats must be monitored, and fishing boats being monitored will pay for said monitors. Section D says these kinds of fishing boats shall be monitored as well but nothing about who pays for it. You will find US law RIDDLED with these inconsistencies.
    - 39896880 2y ago
      This “silent on” meme is clever, but it doesn’t quite work when the entire framework of regulatory law relied on the agencies to adapt to circumstances that everyone knows will change. In fact, your point strengthens that idea: why would anyone with any working knowledge of how regulations work expect the law to need changing to cover every type of fish when the overfishing situation is by definition dynamic? This is the purpose of the “necessary and appropriate” clause. This isn’t even an example text vs. spirit. Congress wrote the law to cover this.
      - stackskipton 2y ago
        I don't know what you are even going on about. Necessary and Proper Clause does not say what you think it means. Necessary and Proper Clause in this case says Congress could legislate in this area and they did until budget cuts made it till they couldn't. Then Executive stepped in and said "Industry will pay for it", they sued and here we are. Just like IRS pays for tax auditors. Congress could still step in here and just make it clear "All monitors shall be funded by fee set by Government." and party over. I'm not sure why Congress didn't do that originally with this law.
rayiner 2y ago
This is an excellent antidote to the terrible hot takes floating around, to which I’ll add just one point: the implications of this case are mixed for both liberals and conservatives. Remember, Chevron itself ruled in favor of an oil company and against an environmental non-profit. Chevron greatly curtailed efforts by the left to force agencies to give effect to the full scope of regulatory laws.
39896880 2y ago
[flagged]
- gadders 2y ago
  I think you must be living in a parallel version of reality.
guntars 2y ago
[flagged]
- throwaway-blaze 2y ago
  Name a single court that hasn't made important decisions. You might not like the Roberts court and even disagree with its majority, but it operates no differently from any that has come before. What is different now is an explicit push to constantly highlight the supposed leanings of the members...but to do that you have to completely ignore the 7-2 and unanimous decisions they have come to just this session...
  - seadan83 2y ago
    The number of long standing precedents that have been overturned is different from previous courts.
    - lolinder 2y ago
      I'm not comfortable with saying that a court that removes too much precedent is inherently worse than a court that creates too much of it. Both courts are legislating from the bench, and if we treat precedent as entirely sacrosanct then we're effectively saying that a court that is aggressive at setting precedent can dictate the way things will be forever. What this court has been very consistently doing is rolling back decisions which substantially increased the authority of the Executive and Judicial branches and trying to restore power to the Legislative branch. That's a motivation that I happen to agree with for reasons I've explained elsewhere [0], and I don't see any reason why things must stay the way they are just because a different court got there first. [0] https://news.ycombinator.com/item?id=40823298 https://news.ycombinator.com/item?id=40823298
      - seadan83 2y ago
        I'm not sure what you mean by 'both' courts, Robert's has been lead justice for something like two decades. The pre and post conservative super majority is a distinction. Regardless, legislatures are not going to now create less ambiguous legislation (they are not experts, they do not understand nuances they are creating, nor do they really want to clarify them even if they did - cause they would get blamed) The thing i really want to point out - Overturning Chevron removes power from the executive branch and gives it to the judicial branch. Instead of an executive agency (which contains subject matter experts) making a good faith interpretation, it would now be up to a court instead. Congress could amend laws to fix ambiguous legislation, but they don't, won't, and it's too much (even if congress were interested to do so). Thus, there is no power going back to the legislature here that did not exist previously (if congress is not happy with how an ambiguous law they wrote is executed, they could always have and can still amend it). Thus, it's a shift from executive branch to judicial. This opens the door to shopping around for judges when an agency does something you don't like. (Per Harry Litman's analysis and opinion) this is perhaps the biggest shift of power from executive to judicial in decades.
lolinder 2y ago
Thank you for posting this! The hot takes on HN on the day of were exhausting—all of a sudden it turned out that this tech forum was chock full of lawyers, most of whom knew for a fact that this ruling was the bringer of the end times for rule of law in the US. In particular, this is the clarification that I was pretty sure was the case but couldn't find a lawyer who'd said so yet: > None of this means that Congress cannot delegate certain matters to agencies. Indeed, Loper says that Congress can still provide agencies with discretionary authority. But Congress must do so through statutory provisions or language where the best reading of the statute, applying traditional tools of statutory interpretation, is that Congress delegated discretionary authority to the agency, subject to ordinary constitutional constraints. Silence or ambiguity alone no longer requires a court to conclude that Congress delegated authority to an agency. So many comments on the day of insisted that this meant that Congress would from now on have to spell out every detail of every rule, and if they didn't do that then the district courts would create a hodgepodge of contradictory interpretations that would make interstate commerce impossible. Yes, there will likely be statutes that need to be rewritten (though, as noted in TFA, not as many as people feared). But they'll need to be rewritten to expressly delegate the authority, not to spell out every rule.
- jauntywundrkind 2y ago
  > The hot takes on HN on the day of were exhausting—all of a sudden it turned out that this tech forum was chock full of lawyers, most of whom knew for a fact that this ruling was the bringer of the end times for rule of law in the US. I rather enjoy people trying to understand & interpret collaboratively. I effing hate stuffy neck people berating the hoi poi for daring to communicate. Effing hate this elitist shit smearing attempt to silence people. I can agree that on second reflection it seems slightly less alarming than Loper initially appeared. But hardly. There are now myriad courts where folks can go judge shop to get the laws spun as they want, which feels like a certain level of chaos, and one to be arbitrated ultimately by politically appointed for life extremist theocratic. And it's unlikely as hell congress is going to get around to doing shit. There is a full swing de-governance project afoot & the madness-by-design & just sheer incompenent thrashings of a party sure make it seem like nothing can get done. What few institutions congress did have now seem at risk: House Intelligence Committee being filled with far right radicals, Perry & Jackson. I agree dysfunction elsewhere isn't a solid enough motive for shifting power as such, but it just seems so unlikely that courts are at all equipped capable or competent, and much much less able to be impartial or fair, as politically appointed lifelong sole-arbiters of how every agency can act. It seems likely to greatly constrain us.
deleted 2y ago
[deleted]
TazeTSchnitzel 2y ago
This is a refreshing perspective, I'm used to laws in my own country having explicit provisions allowing delegated acts to be adopted, so the reactions to this decision had made me wonder if the US somehow didn't have that. But I guess it does, and the problem is Congress is lazy?
- enragedcacti 2y ago
  The US government has a lot of intentional friction built into the system and has had more added over time (e.g. the current iteration of the filibuster). Passing laws is harder and takes much longer than most democracies so applying existing laws to new or unexpected situations is a more important and more common issue. Most of those structural hurdles won't change so the net effect is that instead of the elected administration doing minimal interpretation with judicial checks it will be the unelected and unaccountable judges doing it, usually with years of litigation and potentially years of delay added to any controversial regulation. All of that made worse by the ability to shop for friendly judges (see the absurd mifeprestone case). We do have some broad limits to delegation and at least one member of the current court (Thomas) has expressed a desire to limit delegation further.
- hobs 2y ago
  Congress wants to pretend the other guy is the problem, gerrymandered their own districts and really only care about re-elected. Have a for life appointee in the courts do all the work for them is ideal cover for their more extreme ideals.
  - votepaunchy 2y ago
    Congressional districts are drawn by each state, not Congress itself.
    - hobs 2y ago
      Yes, which are all controlled by the parties who nominate and elect these folks.
jhp123 2y ago
this fedsoc lawyer says that the radical changes made by the fedsoc justices aren't such a big deal. After all, agency discretion was already limited by the major questions doctrine. He doesn't mention the same court made up the major questions doctrine all of 2 years ago! They really think we're idiots who can't put two and two together.
- rayiner 2y ago
  Major questions doctrine was first articulated in 2000, but its inherent in the legal fiction of Chevron. The premise of Chevron is that ambiguous statutory language indicates that Congress intended to give agencies gap-filling power. But the obvious corollary to that is Congress probably didn’t intend to delegate the power to make a huge change in regulatory policy in ambiguous language, without saying so explicitly.
  - jhp123 2y ago
    MQD comes from the 2022 EPA decision. It "announces the arrival of the "major questions doctrine"", that is a direct quote from the decision. None of this power grab is obvious at all or they would be unanimous decisions.
    - tptacek 2y ago
      The underlying judicial phenomenon, which seems to have involved different names (all including "major questions"), appears to long precede 2022. https://harvardlawreview.org/print/vol-129/major-question-objections/ https://harvardlawreview.org/print/vol-129/major-question-ob...
    - rayiner 2y ago
      MQD was applied in FDA v. Brown & Williamson in 2000. That decision cited a 1986 law review article by future Justice Breyer: Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 370 (1986) ("A court may also ask whether the legal question is an important one. Congress is more likely to have focused upon, and answered, major questions, while leaving interstitial matters to answer themselves in the course of the statute's daily administration").
gamblor956 2y ago
TLDR: Federalist Society member writes nonsensical opinion piece ignoring U.S. history to try and justify the nonsensical logic underpinning the Loper decision. This would be like having a pharma executive claiming that they need to charge so much money for medicine so that pharma companies can justify paying the executives huge bonuses.
skhunted 2y ago
I’m not a lawyer and don’t pretend to be one. There are examples where the Chevron defense was used badly and examples where used in a beneficial way. As I see it though we have a dysfunctional Congress and Congress is not going to be passing regulations in a more specific manner as long as though regulations impinge on corporate profits. With Citizens United paving the way for overt corporate influence in elections and this weeks effective legalization of bribery and now the demise of Chevron we are going to be in for a bad time. Regulatory capture will increase. Regulations will be weakened and agencies will be reticent to create new regulations. This Chevron decision by itself is not major or Earht shattering but the environment created by this court coupled with a party that refuses to govern in the interest of the people creates a dire situation.
ultrasaurus 2y ago
It's probably worth noting that "someone who has litigated Chevron cases" and presumably will litigate again has a real bias to look supportive of the supreme court (or any judge who could decide his cases). For the rest of us, whether you agree with the outcome of decision or not, it overturns a 40 year old precedent which is: * old enough that several congresses have had a chance to clarify any older laws and have made new laws with it on the books * not so old that it's obviously from a different era and doesn't make sense today * and always icky from a stare decisis perspective fwiw, from a HN perspective, I'm mostly interested in how the SC works as a process with politics aside.
- rayiner 2y ago
  It’s also fair to point out that someone who doesn’t litigate administrative law cases probably isn’t qualified to offer an opinion on an interpretive practice in administrative law. But I’m curious to understand where this newfound sanctification of precedent comes from. Stare decisis has always been discretionary. The Supreme Court overturned 34 precedents in the 1970s: https://constitution.congress.gov/resources/decisions-overruled/ https://constitution.congress.gov/resources/decisions-overru.... Many of those were 50+ years old. It overturned about two dozen in the 1980s and 1990:. The current Supreme Court has overturned just 10 in 6 years and is on pace to overturn 15-16 over ten years, about the same number as from 2000-2010. In reality, we are in a period of historically high respect for precedent. So ask yourself why this is suddenly being painted as a period of judicial activism.
  - skhunted 2y ago
    The court is clearly going in the direction of activism in the sense of abandoning major precedents that have been around for many decades. Abortion, fair share union dues, Chevron, Citizens United, gutting the Voting Rights Act (thousands of polling stations have been shut down in recent years), and this week effectively legalizing bribery of government officials. The combination of these and other precedents is ushering in a new era of intensifying regulatory capture and with the people effectively losing power. The label for what this is called is irrelevant. It’s the consequences of this that matter and the lower courts see where this court is heading and they will rule accordingly. These decisions have been extremely in terms of detriment to the country. This court will not be looked upon favorably in the future.

45 points by bilsbie 2y ago

If I understand the origin of the case, a Federal agency decided that fishing boats had to bear the costs, some $700/day, of a mandatory monitor (usually a person with marine biology and stats knowledge, I think) that travels on the boat. So every week the boat is operating, is another $3500 in costs added on. This was not something that was in the law, it was decision made by the agency to shift costs off their budget and onto the companies they regulate.

39896880 2y ago
Except the law did contain the provision for this fee. The Magnuson–Stevens Fishery Conservation and Management Act included a “Necessary and Proper” clause that mirrors the Constitution’s, yet the Supreme Court decided that Congress’ ability under that clause doesn’t extend beyond itself. Despite the “History and Tradition” of this delegation, and despite the fact that such powers are literally written in the constitution itself. It seems we are inching closer to a world where it would require a constitutional amendment to make traffic laws.
- kyrra 2y ago
  Do you have links to back up this argument? Anyone that actually cited the parts of th law and and explained how scotus got it wrong?
  - 39896880 2y ago
    “ A split in decisions among federal appeals courts has set the stage for possibly overturning the Chevron deference. In its ruling on the Cape May fishermen’s case, the First Circuit Court of Appeals in Washington, D.C., “decided that broad ‘necessary and appropriate’ language in the Magnuson-Stevens Act, which governs U.S. fisheries, augmented the agency’s regulatory power,” according to a narrative from the New Civil Liberties Alliance. “It then relied heavily on Chevron deference to uphold the agency’s ostensibly reasonable interpretation of a supposedly ambiguous federal statute.” https://www.nationalfisherman.com/national-international/supreme-court-hears-fishermen-s-challenge-that-could-upend-agency-powers https://www.nationalfisherman.com/national-international/sup... Here’s the necessary and proper clause: https://constitution.congress.gov/browse/essay/artI-S8-C18-1/ALDE_00001242/#:~:text=To%20make%20all%20Laws%20which,any%20Department%20or%20Officer%20thereof https://constitution.congress.gov/browse/essay/artI-S8-C18-1.... It’s hard to square “well congress didn’t intend for them to have that power” when they quoted their own damn rules when they wrote the law. But again, SCOTUS decided Congress doesn’t have that power.
    - shrubble 2y ago
      When there is a split among Federal courts then the SCOTUS does often step in. The SCOTUS decision was that the interpretation of the First Circuit was wrong. FWIW it says "the Congress shall have power..." not unelected bureaucrats of any stripe. In the event the issue about "unbiased experts" is raised, remember that the case is about "who should pay" not that there should or should not be monitors on the boat.
      - AnimalMuppet 2y ago
        A "split decision" is not the same as a "split among Federal courts". A split decision just means the appeals court (one Federal district) ruled 2-1 rather than 3-0. A split among Federal courts means that different districts ruled in different ways.
        shrubble 2y ago
        Yes, that is correct; it's worded somewhat clumsily in the parent quote.
- stackskipton 2y ago
  >Except the law did contain the provision for this fee. Incorrect. The law has provisions of this kind of fee for other types of fish, it was silent on herring which these boats were fishing for. Historically, the government had been funding these monitors until budget cuts made no longer possible. So, agency created a rule that since while law says monitors are required and we can't pay for it, the industry must now pay for it. Industry sued and here we are.
  - collingreen 2y ago
    I don't know anything about the legal side of any of this convo but your "Incorrect" followed up by saying in apparent seriousness that there are laws for fish but not THIS PARTICULAR kind of fish made me actually laugh out loud. Internet comments have the funniest versions of good and bad faith.
    - stackskipton 2y ago
      But that's entire debate in the case with SCOTUS and this is a ton of US law. Section A/B/C says these kind of fish boats must be monitored, and fishing boats being monitored will pay for said monitors. Section D says these kinds of fishing boats shall be monitored as well but nothing about who pays for it. You will find US law RIDDLED with these inconsistencies.
  - 39896880 2y ago
    This “silent on” meme is clever, but it doesn’t quite work when the entire framework of regulatory law relied on the agencies to adapt to circumstances that everyone knows will change. In fact, your point strengthens that idea: why would anyone with any working knowledge of how regulations work expect the law to need changing to cover every type of fish when the overfishing situation is by definition dynamic? This is the purpose of the “necessary and appropriate” clause. This isn’t even an example text vs. spirit. Congress wrote the law to cover this.
    - stackskipton 2y ago
      I don't know what you are even going on about. Necessary and Proper Clause does not say what you think it means. Necessary and Proper Clause in this case says Congress could legislate in this area and they did until budget cuts made it till they couldn't. Then Executive stepped in and said "Industry will pay for it", they sued and here we are. Just like IRS pays for tax auditors. Congress could still step in here and just make it clear "All monitors shall be funded by fee set by Government." and party over. I'm not sure why Congress didn't do that originally with this law.

rayiner 2y ago

This is an excellent antidote to the terrible hot takes floating around, to which I’ll add just one point: the implications of this case are mixed for both liberals and conservatives. Remember, Chevron itself ruled in favor of an oil company and against an environmental non-profit. Chevron greatly curtailed efforts by the left to force agencies to give effect to the full scope of regulatory laws.

39896880 2y ago

[flagged]

gadders 2y ago
I think you must be living in a parallel version of reality.

guntars 2y ago

[flagged]

throwaway-blaze 2y ago
Name a single court that hasn't made important decisions. You might not like the Roberts court and even disagree with its majority, but it operates no differently from any that has come before. What is different now is an explicit push to constantly highlight the supposed leanings of the members...but to do that you have to completely ignore the 7-2 and unanimous decisions they have come to just this session...
- seadan83 2y ago
  The number of long standing precedents that have been overturned is different from previous courts.
  - lolinder 2y ago
    I'm not comfortable with saying that a court that removes too much precedent is inherently worse than a court that creates too much of it. Both courts are legislating from the bench, and if we treat precedent as entirely sacrosanct then we're effectively saying that a court that is aggressive at setting precedent can dictate the way things will be forever. What this court has been very consistently doing is rolling back decisions which substantially increased the authority of the Executive and Judicial branches and trying to restore power to the Legislative branch. That's a motivation that I happen to agree with for reasons I've explained elsewhere [0], and I don't see any reason why things must stay the way they are just because a different court got there first. [0] https://news.ycombinator.com/item?id=40823298 https://news.ycombinator.com/item?id=40823298
    - seadan83 2y ago
      I'm not sure what you mean by 'both' courts, Robert's has been lead justice for something like two decades. The pre and post conservative super majority is a distinction. Regardless, legislatures are not going to now create less ambiguous legislation (they are not experts, they do not understand nuances they are creating, nor do they really want to clarify them even if they did - cause they would get blamed) The thing i really want to point out - Overturning Chevron removes power from the executive branch and gives it to the judicial branch. Instead of an executive agency (which contains subject matter experts) making a good faith interpretation, it would now be up to a court instead. Congress could amend laws to fix ambiguous legislation, but they don't, won't, and it's too much (even if congress were interested to do so). Thus, there is no power going back to the legislature here that did not exist previously (if congress is not happy with how an ambiguous law they wrote is executed, they could always have and can still amend it). Thus, it's a shift from executive branch to judicial. This opens the door to shopping around for judges when an agency does something you don't like. (Per Harry Litman's analysis and opinion) this is perhaps the biggest shift of power from executive to judicial in decades.

lolinder 2y ago

Thank you for posting this! The hot takes on HN on the day of were exhausting—all of a sudden it turned out that this tech forum was chock full of lawyers, most of whom knew for a fact that this ruling was the bringer of the end times for rule of law in the US. In particular, this is the clarification that I was pretty sure was the case but couldn't find a lawyer who'd said so yet: > None of this means that Congress cannot delegate certain matters to agencies. Indeed, Loper says that Congress can still provide agencies with discretionary authority. But Congress must do so through statutory provisions or language where the best reading of the statute, applying traditional tools of statutory interpretation, is that Congress delegated discretionary authority to the agency, subject to ordinary constitutional constraints. Silence or ambiguity alone no longer requires a court to conclude that Congress delegated authority to an agency. So many comments on the day of insisted that this meant that Congress would from now on have to spell out every detail of every rule, and if they didn't do that then the district courts would create a hodgepodge of contradictory interpretations that would make interstate commerce impossible. Yes, there will likely be statutes that need to be rewritten (though, as noted in TFA, not as many as people feared). But they'll need to be rewritten to expressly delegate the authority, not to spell out every rule.

jauntywundrkind 2y ago
> The hot takes on HN on the day of were exhausting—all of a sudden it turned out that this tech forum was chock full of lawyers, most of whom knew for a fact that this ruling was the bringer of the end times for rule of law in the US. I rather enjoy people trying to understand & interpret collaboratively. I effing hate stuffy neck people berating the hoi poi for daring to communicate. Effing hate this elitist shit smearing attempt to silence people. I can agree that on second reflection it seems slightly less alarming than Loper initially appeared. But hardly. There are now myriad courts where folks can go judge shop to get the laws spun as they want, which feels like a certain level of chaos, and one to be arbitrated ultimately by politically appointed for life extremist theocratic. And it's unlikely as hell congress is going to get around to doing shit. There is a full swing de-governance project afoot & the madness-by-design & just sheer incompenent thrashings of a party sure make it seem like nothing can get done. What few institutions congress did have now seem at risk: House Intelligence Committee being filled with far right radicals, Perry & Jackson. I agree dysfunction elsewhere isn't a solid enough motive for shifting power as such, but it just seems so unlikely that courts are at all equipped capable or competent, and much much less able to be impartial or fair, as politically appointed lifelong sole-arbiters of how every agency can act. It seems likely to greatly constrain us.

deleted 2y ago

[deleted]

TazeTSchnitzel 2y ago

This is a refreshing perspective, I'm used to laws in my own country having explicit provisions allowing delegated acts to be adopted, so the reactions to this decision had made me wonder if the US somehow didn't have that. But I guess it does, and the problem is Congress is lazy?

enragedcacti 2y ago
The US government has a lot of intentional friction built into the system and has had more added over time (e.g. the current iteration of the filibuster). Passing laws is harder and takes much longer than most democracies so applying existing laws to new or unexpected situations is a more important and more common issue. Most of those structural hurdles won't change so the net effect is that instead of the elected administration doing minimal interpretation with judicial checks it will be the unelected and unaccountable judges doing it, usually with years of litigation and potentially years of delay added to any controversial regulation. All of that made worse by the ability to shop for friendly judges (see the absurd mifeprestone case). We do have some broad limits to delegation and at least one member of the current court (Thomas) has expressed a desire to limit delegation further.
hobs 2y ago
Congress wants to pretend the other guy is the problem, gerrymandered their own districts and really only care about re-elected. Have a for life appointee in the courts do all the work for them is ideal cover for their more extreme ideals.
- votepaunchy 2y ago
  Congressional districts are drawn by each state, not Congress itself.
  - hobs 2y ago
    Yes, which are all controlled by the parties who nominate and elect these folks.

jhp123 2y ago

this fedsoc lawyer says that the radical changes made by the fedsoc justices aren't such a big deal. After all, agency discretion was already limited by the major questions doctrine. He doesn't mention the same court made up the major questions doctrine all of 2 years ago! They really think we're idiots who can't put two and two together.

rayiner 2y ago
Major questions doctrine was first articulated in 2000, but its inherent in the legal fiction of Chevron. The premise of Chevron is that ambiguous statutory language indicates that Congress intended to give agencies gap-filling power. But the obvious corollary to that is Congress probably didn’t intend to delegate the power to make a huge change in regulatory policy in ambiguous language, without saying so explicitly.
- jhp123 2y ago
  MQD comes from the 2022 EPA decision. It "announces the arrival of the "major questions doctrine"", that is a direct quote from the decision. None of this power grab is obvious at all or they would be unanimous decisions.
  - tptacek 2y ago
    The underlying judicial phenomenon, which seems to have involved different names (all including "major questions"), appears to long precede 2022. https://harvardlawreview.org/print/vol-129/major-question-objections/ https://harvardlawreview.org/print/vol-129/major-question-ob...
  - rayiner 2y ago
    MQD was applied in FDA v. Brown & Williamson in 2000. That decision cited a 1986 law review article by future Justice Breyer: Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 370 (1986) ("A court may also ask whether the legal question is an important one. Congress is more likely to have focused upon, and answered, major questions, while leaving interstitial matters to answer themselves in the course of the statute's daily administration").

gamblor956 2y ago

TLDR: Federalist Society member writes nonsensical opinion piece ignoring U.S. history to try and justify the nonsensical logic underpinning the Loper decision. This would be like having a pharma executive claiming that they need to charge so much money for medicine so that pharma companies can justify paying the executives huge bonuses.

skhunted 2y ago

I’m not a lawyer and don’t pretend to be one. There are examples where the Chevron defense was used badly and examples where used in a beneficial way. As I see it though we have a dysfunctional Congress and Congress is not going to be passing regulations in a more specific manner as long as though regulations impinge on corporate profits. With Citizens United paving the way for overt corporate influence in elections and this weeks effective legalization of bribery and now the demise of Chevron we are going to be in for a bad time. Regulatory capture will increase. Regulations will be weakened and agencies will be reticent to create new regulations. This Chevron decision by itself is not major or Earht shattering but the environment created by this court coupled with a party that refuses to govern in the interest of the people creates a dire situation.

ultrasaurus 2y ago

It's probably worth noting that "someone who has litigated Chevron cases" and presumably will litigate again has a real bias to look supportive of the supreme court (or any judge who could decide his cases). For the rest of us, whether you agree with the outcome of decision or not, it overturns a 40 year old precedent which is: * old enough that several congresses have had a chance to clarify any older laws and have made new laws with it on the books * not so old that it's obviously from a different era and doesn't make sense today * and always icky from a stare decisis perspective fwiw, from a HN perspective, I'm mostly interested in how the SC works as a process with politics aside.

rayiner 2y ago
It’s also fair to point out that someone who doesn’t litigate administrative law cases probably isn’t qualified to offer an opinion on an interpretive practice in administrative law. But I’m curious to understand where this newfound sanctification of precedent comes from. Stare decisis has always been discretionary. The Supreme Court overturned 34 precedents in the 1970s: https://constitution.congress.gov/resources/decisions-overruled/ https://constitution.congress.gov/resources/decisions-overru.... Many of those were 50+ years old. It overturned about two dozen in the 1980s and 1990:. The current Supreme Court has overturned just 10 in 6 years and is on pace to overturn 15-16 over ten years, about the same number as from 2000-2010. In reality, we are in a period of historically high respect for precedent. So ask yourself why this is suddenly being painted as a period of judicial activism.
- skhunted 2y ago
  The court is clearly going in the direction of activism in the sense of abandoning major precedents that have been around for many decades. Abortion, fair share union dues, Chevron, Citizens United, gutting the Voting Rights Act (thousands of polling stations have been shut down in recent years), and this week effectively legalizing bribery of government officials. The combination of these and other precedents is ushering in a new era of intensifying regulatory capture and with the people effectively losing power. The label for what this is called is irrelevant. It’s the consequences of this that matter and the lower courts see where this court is heading and they will rule accordingly. These decisions have been extremely in terms of detriment to the country. This court will not be looked upon favorably in the future.