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Yes, way more. In Kagan’s dissent she talks about how the court will now need to decide minutiae of regulation not clearly laid out in the text, involving exper
by TaylorAlexander 2y ago
Yes, way more. In Kagan’s dissent she talks about how the court will now need to decide minutiae of regulation not clearly laid out in the text, involving expertise the court doesn’t have. I can’t seem to copy and paste from this PDF on mobile, but the dissent is well worth a read:
https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf
EDIT: On desktop, pasting in from the dissent:
(Kagan's words) Consider a few examples from the caselaw. They will help show what a typical Chevron question looks like—or
really, what a typical Chevron question is. Because when
choosing whether to send some class of questions mainly to
a court, or mainly to an agency, abstract analysis can only
go so far; indeed, it may obscure what matters most. So I
begin with the concrete:
- Under the Public Health Service Act, the Food and
Drug Administration (FDA) regulates “biological product[s],” including “protein[s].” 42 U. S. C. §262(i)(1).
When does an alpha amino acid polymer qualify as
such a “protein”? Must it have a specific, defined sequence of amino acids? See Teva Pharmaceuticals
USA, Inc. v. FDA, 514 F. Supp. 3d 66, 79–80, 93–106
(DC 2020).
- Under the Endangered Species Act, the Fish and Wild-
life Service must designate endangered “vertebrate fish
or wildlife” species, including “distinct population seg-
ment[s]” of those species. 16 U. S. C. §1532(16); see
§1533. What makes one population segment “distinct”
from another? Must the Service treat the Washington
State population of western gray squirrels as “distinct”
because it is geographically separated from other western gray squirrels? Or can the Service take into account that the genetic makeup of the Washington population does not differ markedly from the rest? See
Northwest Ecosystem Alliance v. United States Fish
and Wildlife Serv., 475 F. 3d 1136, 1140–1145, 1149
(CA9 2007).
- Under the Medicare program, reimbursements to hospitals are adjusted to reflect “differences in hospital
wage levels” across “geographic area[s].” 42 U. S. C.
§1395ww(d)(3)(E)(i). How should the Department of
Health and Human Services measure a “geographic
area”? By city? By county? By metropolitan area? See
Bellevue Hospital Center v. Leavitt, 443 F. 3d 163, 174–
176 (CA2 2006).
- Congress directed the Department of the Interior and
the Federal Aviation Administration to reduce noise
from aircraft flying over Grand Canyon National
Park—specifically, to “provide for substantial restoration of the natural quiet.” §3(b)(1), 101 Stat. 676; see
§3(b)(2). How much noise is consistent with “the natural quiet”? And how much of the park, for how many
hours a day, must be that quiet for the “substantial restoration” requirement to be met? See Grand Canyon
Air Tour Coalition v. FAA, 154 F. 3d 455, 466–467,
474–475 (CADC 1998).
- edgyquant 2y agoIt was already the case that the courts were having to delegate to expertise they didn’t have (this is a frequent occurrence and not something new) the difference is previously courts had to delegate to government experts and now they don’t.
- rootusrootus 2y agoThe courts have long used 'expert witnesses' to make decisions, I expect this will just become even more common going forward. And many times these so-called 'experts' are in fact provided by the very industries that would be affected by legislative decisions. On the surface what looks like a significant increase of power by the judiciary seems really to be effectively an additional capture by corporations. Maybe it was already that way by a different route, but still.