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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

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.
cogman10 2y ago
There is no level of writing in a statute that can survive an activist judge that wants to eliminate that statute. The clearest example of this is the clean air act. The EPA has the authority very clearly spelled out in statute to determine what is and isn't a pollutant and how to restrict it. So why then couldn't they define CO2 as a pollutant and regulate emissions? Because activist judges did not like that. The supreme court reversed those powers granted by congress. We have multiple recent examples of the supreme court ignoring what the law says because it's inconvenient to their political agendas (For example, the gutting of the voting rights act).
- daft_pink 2y ago
  But at the end of the day, Congress could still step in and say that CO2 is a pollutant and authorize it. The fact that they haven’t says something about where the American public stands on such an idea.
  - cogman10 2y ago
    Congress could have stepped in and disbanded the EPA, but they haven't which is a fact that says something about where the American public stands on such an idea. Does congress now need to step in every year to re-approve every law and agency created? But further, an elephant in the room is the senate which runs completely counter to the american public. It grants extreme representation to the minority of the american public and further enhances that power with the filibuster which allows senators from the least populated states to stop laws passed by the house which more closely represents the general public.
- rayiner 2y ago
  Your example is exactly backwards! In Massachusetts v. EPA, the Supreme Court ignored Chevron deference, and told the EPA that CO2 could be a pollutant under the statute. The EPA didn’t want to regulate CO2.
  - cogman10 2y ago
    Yes, and later on when the EPA made CO2 a pollutant (WEST VIRGINIA v the EPA) the supreme court ruled "Actuaally... JK, ignore that last ruling because you can't do this". [1] As in, they literally ignored their ruling made just a few years prior because when the EPA called their bluff it would result in an outcome they didn't like. Heads you lose, tails we win. [1] https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf
entangledqubit 2y ago
I assume that some of the doomsaying perspective comes from operating under the assumption that Congress will be about as functional as it has been lately and not actually get around to explicitly delegating.
- enragedcacti 2y ago
  And that this court will continue to flagrantly misinterpret laws to reach their desired policy goals. For an example see Sackett v. EPA where the majority very carefully fails to understand the difference between adjacent and adjoining in order to cull environmental regulations they don't like. From Kavanaugh: "In my view, the Court’s “continuous surface connection” test departs from the statutory text, from 45 years of consistent agency practice, and from this Court’s precedents. The Court’s test narrows the Clean Water Act’s coverage of “adjacent” wetlands to mean only “adjoining” wetlands. But “adjacent” and “adjoining” have distinct meanings: Adjoining wetlands are contiguous to or bordering a covered water, whereas adjacent wetlands include both (i) those wetlands contiguous to or bordering a covered water, and (ii) wetlands separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like."
  - salawat 2y ago
    >And that this court will continue to flagrantly misinterpret laws to reach their desired policy goals. You mean like every Court has done since Wickard v. Filburn? I dare say it most certainly does get old.
    - enragedcacti 2y ago
      > You mean like every Court has done since Wickard v. Filburn? Yes, its definitely not a new issue. Which is why I'm not a fan of the judiciary grabbing so much power for itself, the least representative and least accountable branch of government.
gamblor956 2y ago
There are actually a great number of practicing lawyers on HN... The reason for the doom and gloom is that many of the administrative bodies under attack already have the explicit authority from Congress to do what they do, drafted specifically to satisfy the requirements of the Chevron doctrine... Indeed, the Loper decision is contrary to the actual U.S. history of federal agencies dating back to the start of the U.S. (Brief history lesson: the U.S. Constitution gave the federal government strong, broad powers after the abysmal failure of the Articles of Confederation demonstrated the abject uselessness of a weak central government. Thus, for the first 2 centuries of U.S. history, powers were assumed to belong to the federal government unless explicitly carved out. Extreme activists like the "Federalist" society have spent the last several decades attempting to return the U.S. to days of the Articles of Confederation.) Chevron was a huge attack on the power of the federal government but ultimately workable since it just required (broad) delegation. Loper says that broad delegation is no longer sufficient; Congress must now spell out nearly every rule.
- rayiner 2y ago
  Are you an administrative lawyer? Because Loper has nothing to do with federal versus state power. And as late as 1944, the Supreme Court was expressing the common-sense view that, while agency interpretations of the law may be persuasive if they are persuasive, courts ultimately must decide what the law means. This case also has nothing to do with what can and cannot be delegated. It is about who resolves ambiguities in the statutory language that delegates that power. One of the crazy things about Chevron, for example, was that courts were required to defer to the agency’s interpretation of its own jurisdiction!
- lolinder 2y ago
  > Brief history lesson: the U.S. Constitution gave the federal government strong, broad powers after the abysmal failure of the Articles of Confederation demonstrated the abject uselessness of a weak central government. Thus, for the first 2 centuries of U.S. history, powers were assumed to belong to the federal government unless explicitly carved out. Respectfully, this is not history, this is a fiction. The Constitution was designed to be stronger than the Articles of Confederation but it was not intended to assign powers to the federal government by default. On the contrary, the Tenth Amendment to the Constitution (ratified in 1791) uses almost the exact inverse of the language you use to take all powers not explicitly granted the Federal government and grant them instead to the states: > The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. The States were sold on the idea that something stronger than the Articles of Confederation was needed but that they would still maintain a large degree of sovereignty. The history of the first two centuries of the US is one where the powers that the states initially retained were gradually moved into the Federal government. We can debate whether or not that process was a good thing (I think in general it was, with exceptions), but you're arguing from a foundation of an alternate history and I don't really know how to proceed from there.
rayiner 2y ago
To be clear, Congress does not even have to delegate authority with a great degree of specificity. If you read the Communications Act of 1934, for example, it has broad provisions that expressly give great discretion to the FCC to decide matters of policy. Chevron doesn’t affect that. Where Chevron comes into play is usually where Congress was pretty specific, because the statute embodies some sort of legislative compromise. In those cases, Chevron means that agencies can easily undo (in either direction) the legislative compromise Congress created.

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.

cogman10 2y ago

There is no level of writing in a statute that can survive an activist judge that wants to eliminate that statute. The clearest example of this is the clean air act. The EPA has the authority very clearly spelled out in statute to determine what is and isn't a pollutant and how to restrict it. So why then couldn't they define CO2 as a pollutant and regulate emissions? Because activist judges did not like that. The supreme court reversed those powers granted by congress. We have multiple recent examples of the supreme court ignoring what the law says because it's inconvenient to their political agendas (For example, the gutting of the voting rights act).

daft_pink 2y ago
But at the end of the day, Congress could still step in and say that CO2 is a pollutant and authorize it. The fact that they haven’t says something about where the American public stands on such an idea.
- cogman10 2y ago
  Congress could have stepped in and disbanded the EPA, but they haven't which is a fact that says something about where the American public stands on such an idea. Does congress now need to step in every year to re-approve every law and agency created? But further, an elephant in the room is the senate which runs completely counter to the american public. It grants extreme representation to the minority of the american public and further enhances that power with the filibuster which allows senators from the least populated states to stop laws passed by the house which more closely represents the general public.
rayiner 2y ago
Your example is exactly backwards! In Massachusetts v. EPA, the Supreme Court ignored Chevron deference, and told the EPA that CO2 could be a pollutant under the statute. The EPA didn’t want to regulate CO2.
- cogman10 2y ago
  Yes, and later on when the EPA made CO2 a pollutant (WEST VIRGINIA v the EPA) the supreme court ruled "Actuaally... JK, ignore that last ruling because you can't do this". [1] As in, they literally ignored their ruling made just a few years prior because when the EPA called their bluff it would result in an outcome they didn't like. Heads you lose, tails we win. [1] https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf https://www.supremecourt.gov/opinions/21pdf/20-1530_n758.pdf

entangledqubit 2y ago

I assume that some of the doomsaying perspective comes from operating under the assumption that Congress will be about as functional as it has been lately and not actually get around to explicitly delegating.

enragedcacti 2y ago
And that this court will continue to flagrantly misinterpret laws to reach their desired policy goals. For an example see Sackett v. EPA where the majority very carefully fails to understand the difference between adjacent and adjoining in order to cull environmental regulations they don't like. From Kavanaugh: "In my view, the Court’s “continuous surface connection” test departs from the statutory text, from 45 years of consistent agency practice, and from this Court’s precedents. The Court’s test narrows the Clean Water Act’s coverage of “adjacent” wetlands to mean only “adjoining” wetlands. But “adjacent” and “adjoining” have distinct meanings: Adjoining wetlands are contiguous to or bordering a covered water, whereas adjacent wetlands include both (i) those wetlands contiguous to or bordering a covered water, and (ii) wetlands separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like."
- salawat 2y ago
  >And that this court will continue to flagrantly misinterpret laws to reach their desired policy goals. You mean like every Court has done since Wickard v. Filburn? I dare say it most certainly does get old.
  - enragedcacti 2y ago
    > You mean like every Court has done since Wickard v. Filburn? Yes, its definitely not a new issue. Which is why I'm not a fan of the judiciary grabbing so much power for itself, the least representative and least accountable branch of government.

gamblor956 2y ago

There are actually a great number of practicing lawyers on HN... The reason for the doom and gloom is that many of the administrative bodies under attack already have the explicit authority from Congress to do what they do, drafted specifically to satisfy the requirements of the Chevron doctrine... Indeed, the Loper decision is contrary to the actual U.S. history of federal agencies dating back to the start of the U.S. (Brief history lesson: the U.S. Constitution gave the federal government strong, broad powers after the abysmal failure of the Articles of Confederation demonstrated the abject uselessness of a weak central government. Thus, for the first 2 centuries of U.S. history, powers were assumed to belong to the federal government unless explicitly carved out. Extreme activists like the "Federalist" society have spent the last several decades attempting to return the U.S. to days of the Articles of Confederation.) Chevron was a huge attack on the power of the federal government but ultimately workable since it just required (broad) delegation. Loper says that broad delegation is no longer sufficient; Congress must now spell out nearly every rule.

rayiner 2y ago
Are you an administrative lawyer? Because Loper has nothing to do with federal versus state power. And as late as 1944, the Supreme Court was expressing the common-sense view that, while agency interpretations of the law may be persuasive if they are persuasive, courts ultimately must decide what the law means. This case also has nothing to do with what can and cannot be delegated. It is about who resolves ambiguities in the statutory language that delegates that power. One of the crazy things about Chevron, for example, was that courts were required to defer to the agency’s interpretation of its own jurisdiction!
lolinder 2y ago
> Brief history lesson: the U.S. Constitution gave the federal government strong, broad powers after the abysmal failure of the Articles of Confederation demonstrated the abject uselessness of a weak central government. Thus, for the first 2 centuries of U.S. history, powers were assumed to belong to the federal government unless explicitly carved out. Respectfully, this is not history, this is a fiction. The Constitution was designed to be stronger than the Articles of Confederation but it was not intended to assign powers to the federal government by default. On the contrary, the Tenth Amendment to the Constitution (ratified in 1791) uses almost the exact inverse of the language you use to take all powers not explicitly granted the Federal government and grant them instead to the states: > The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. The States were sold on the idea that something stronger than the Articles of Confederation was needed but that they would still maintain a large degree of sovereignty. The history of the first two centuries of the US is one where the powers that the states initially retained were gradually moved into the Federal government. We can debate whether or not that process was a good thing (I think in general it was, with exceptions), but you're arguing from a foundation of an alternate history and I don't really know how to proceed from there.

rayiner 2y ago

To be clear, Congress does not even have to delegate authority with a great degree of specificity. If you read the Communications Act of 1934, for example, it has broad provisions that expressly give great discretion to the FCC to decide matters of policy. Chevron doesn’t affect that. Where Chevron comes into play is usually where Congress was pretty specific, because the statute embodies some sort of legislative compromise. In those cases, Chevron means that agencies can easily undo (in either direction) the legislative compromise Congress created.