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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 alrea

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.
- gamblor956 2y ago
  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. My evidence is literally several decades of early SCOTUS rulings... The primacy of the federal government over the states was well established during the lifetime of the Constitution's signers. Chisholm v Georgia (1793), Ware v. Hylton (1796), Martin vs. Hunter's Lessee (1816), McCulloch v Maryland (1819). 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 10th Amendment was regarded then, as it is now, as a sop to the states to give them the illusion that any "remaining" powers were granted to them. Any astute lawyer will point out that the Constitution already granted the federal government explicit powers; there were no significant powers left to delegate to states aside from hyper-local matters like policing. And the SCOTUS rulings from the first 50 years of U.S. history back up the understanding that the 10th Amendment didn't actually give the states meaningful powers. The idea that the 10th Amendment actually granted the states any powers was a fiction first employed by the Southern states to try to secede from the Union, and resurrected a century later by the Federalist Society.
  - deleted 2y ago
    [deleted]
  - lolinder 2y ago
    Chrisholm v. Georgia prompted the creation of the Eleventh Amendment specifically to patch that part of the law to strengthen the states, so that's hardly a good example of a building consensus of federal powers. Ware v. Hylton is a straightforward application of the enumerated powers. Martin vs. Hunter's Lessee is likewise straightforward—it would be meaningless to have a federal law if each state could interpret it differently. While McCulloch v. Maryland has been used to dramatically extend the powers of the federal government it's not clear that this was the intention at the time. The scope at the time was that the delegation of a specific power to the Federal government implied the delegation of the means to execute that power, which is not the same thing as assigning all powers to the Federal government by default. While we're citing random Supreme Court cases to try to get a sense for the legal situation in the 1800s, here are some you glossed over: * Barron v. Baltimore (1833) held that the Bill of Rights could not bind State governments. * Cooley v. Board of Warrens (1852) held that States can regular interstate commerce as long as they don't conflict with acts of Congress. * Pollock v. Farmer's Loan & Trust Co. (1895) held that unapportioned income tax was unconstitutional. This had to be fixed with an amendment. > The idea that the 10th Amendment actually granted the states any powers was a fiction first employed by the Southern states to try to secede from the Union, and resurrected a century later by the Federalist Society. If this were true then I would be 100% sympathetic to the Southern states who felt they'd had a bait and switch pulled on them. But it's pretty obvious from the primary sources all the way through the civil war that this is not how it was perceived. That said, it's obvious that you have your history and you won't be separated from it, so I'm going to check out here.

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.

gamblor956 2y ago
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. My evidence is literally several decades of early SCOTUS rulings... The primacy of the federal government over the states was well established during the lifetime of the Constitution's signers. Chisholm v Georgia (1793), Ware v. Hylton (1796), Martin vs. Hunter's Lessee (1816), McCulloch v Maryland (1819). 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 10th Amendment was regarded then, as it is now, as a sop to the states to give them the illusion that any "remaining" powers were granted to them. Any astute lawyer will point out that the Constitution already granted the federal government explicit powers; there were no significant powers left to delegate to states aside from hyper-local matters like policing. And the SCOTUS rulings from the first 50 years of U.S. history back up the understanding that the 10th Amendment didn't actually give the states meaningful powers. The idea that the 10th Amendment actually granted the states any powers was a fiction first employed by the Southern states to try to secede from the Union, and resurrected a century later by the Federalist Society.
- deleted 2y ago
  [deleted]
- lolinder 2y ago
  Chrisholm v. Georgia prompted the creation of the Eleventh Amendment specifically to patch that part of the law to strengthen the states, so that's hardly a good example of a building consensus of federal powers. Ware v. Hylton is a straightforward application of the enumerated powers. Martin vs. Hunter's Lessee is likewise straightforward—it would be meaningless to have a federal law if each state could interpret it differently. While McCulloch v. Maryland has been used to dramatically extend the powers of the federal government it's not clear that this was the intention at the time. The scope at the time was that the delegation of a specific power to the Federal government implied the delegation of the means to execute that power, which is not the same thing as assigning all powers to the Federal government by default. While we're citing random Supreme Court cases to try to get a sense for the legal situation in the 1800s, here are some you glossed over: * Barron v. Baltimore (1833) held that the Bill of Rights could not bind State governments. * Cooley v. Board of Warrens (1852) held that States can regular interstate commerce as long as they don't conflict with acts of Congress. * Pollock v. Farmer's Loan & Trust Co. (1895) held that unapportioned income tax was unconstitutional. This had to be fixed with an amendment. > The idea that the 10th Amendment actually granted the states any powers was a fiction first employed by the Southern states to try to secede from the Union, and resurrected a century later by the Federalist Society. If this were true then I would be 100% sympathetic to the Southern states who felt they'd had a bait and switch pulled on them. But it's pretty obvious from the primary sources all the way through the civil war that this is not how it was perceived. That said, it's obvious that you have your history and you won't be separated from it, so I'm going to check out here.