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I am surprised that the Chevron case and this have not overlapped I thought the outcome of Chevron being overturned (I.e. “3-letter-agencies can no longer unil

by cdolan 2y ago

I am surprised that the Chevron case and this have not overlapped I thought the outcome of Chevron being overturned (I.e. “3-letter-agencies can no longer unilaterally make laws”) would have come up here as well, since the FTC is part of the Executive Branch (Not trying to comment on the underlying case. Don’t care to argue for or against NCs)

jkaplowitz 2y ago
The overturning of Chevron doesn’t prevent executive branch agencies from unilaterally making law (in the form of legally binding regulations) through the Administrative Procedure Act process if they stay within one of Congress’s statutory grants of authority. “Unilaterally” is not the same thing as “immune to judicial review” or “entitled to automatic judicial deference”. What Chevron previously said is that, if the scope of the statutory grant of authority was ambiguous and the agency’s interpretation of that ambiguity was reasonable, then the court must defer to the agency’s interpretation. That requirement is now gone. Without the Chevron rule, courts will still uphold a regulation that was clearly statutorily authorized under the same conditions as when Chevron was good law, and they will still overturn regulations that were clearly not authorized by statute just as they did under Chevron. For ambiguous cases, the court now independently reaches their own judicial finding of law, just as they would if deciding whether a statute passed by Congress is authorized by the Constitution. Of course, courts still can and will give due consideration to the opinion of the agency and their subject-matter experts, just as they would consider the briefs and evidence from all parties to any dispute. Only the automatic deference which Chevron sometimes required is gone. Regarding the FTC non-compete rule, neither court ruling relied on Chevron. One court found the relevant statutory authority to be sufficient through their own independent judicial analysis rather than through Chevron deference, and one found it to be insufficient (a finding which never involved Chevron deference).
- sqeaky 2y ago
  But isn't the overturning of Chevron itself an example of the Court ignoring the authorizations of Congress? Congress delegated the authority to agencies to make regulations.
  - pfdietz 2y ago
    No, I don't believe so.
  - ethbr1 2y ago
    > Congress delegated the authority to agencies to make regulations. It did and it didn't. As parent was saying, Congress generally created each executive agency through a specific authorizing act, that also contained what it should do and its powers. Chevron (or its overturning) has to do with what happens when that authorization was ambiguous. Previously (Chevron), courts had to defer to the agency. Now they don't. Neither of which changes what courts have to do when the authorization is not ambiguous. Which is a lot of times.
    - tialaramex 2y ago
      "Which is a lot of times" You can always imagine an ambiguity into existence. Chevron deference meant that wasn't enough and now it is. Human natural languages are naturally ambiguous. This Supreme Court ruling encourages courts, especially Right-leaning courts to just declare that oops, this text was ambiguous and so even though it's obvious to any normal person that Congress did intend exactly the regulation at issue, a court can argue it isn't sure they meant that and so the regulations have no effect until Congress finds the time to spell it out to the court's satisfaction, which may be never. The bigger problem is that as judges find more and more tortured ways to fit their ideology onto the raw text this is further destroying trust in the justice system which erodes not just the republic, which presumably Republicans no longer give a shit about, but the United States of America itself, the country. Even an Autocrat needs that trust, the US isn't Monaco, it cannot be managed without a vast bureaucracy. What's notable about the present Supreme Court isn't that they're partisans, that's inevitable under the US system for decades at least. What's notable is that they're not very good judges. Scalia wasn't great but he was smarter than several of the newer justices which is at least something. And Thomas is a joke, if this man was on my magistrates bench I'd have him kicked out. When is the last time you saw a US Supreme Court decision which articulates a good principle of justice and uses that to explain the decision such that it seems in hindsight obvious and inevitable? There should be several of these each season, ideally the vast majority of decisions. Instead we get tortured logic and the sort of dubious attempts at reinterpreting somebody else's words by ignoring their plain meaning that would get you a poor grade in an undergraduate essay. This means more work for the justices, further over-burdening a system that is failing. Take Obergefell. The dissents are pretty stupid, but even the Kennedy decision is poor work, if this gets a passing grade in BA Law the lecturer is too generous. Yes, James Obergefell ultimately deserved at least what this decision gave him, but the decision can't bring itself to articulate a core principle to explain that. If the Supreme Court can't or won't take such a stance, why even have one?
- pjmorris 2y ago
  > For ambiguous cases, the court now independently reaches their own judicial finding of law, just as they would if deciding whether a statute passed by Congress is authorized by the Constitution. Does this mean that, in ambiguous cases, judges wind up in a position where their judicial expertise takes precedence over the technical expertise behind the statues?
  - jkaplowitz 2y ago
    First of all, courts aren’t ruling on the merits of regulations, only on whether they were enacted with valid authority and following the correct procedure (including not being arbitrary and capricious). And the overturning of Chevron has nothing to do with how courts handle technical expertise behind statutes - it’s only about adjudicating the validity of regulations, not of statutes. So the rest of my comment discusses the case when opinions from a regulatory agency’s technical experts are somehow relevant to whether a regulation is valid and not just to the regulation’s merits or lack thereof. Judges are still either encouraged or expected (I forget which) to give due respect to the agency’s technical experts, based on pre-Chevron precedents. They’re definitely not forbidden from doing so. But for example, what if the challenger also presents technical expert opinions which run counter to the argument of the agency’s expert? Under Chevron, the court had no authority to conclude that the challenger’s expert-informed argument was more likely to be right than the agency’s expert-informed argument when both arguments are reasonable. Now that Chevron is overturned, the court does have that authority. Just like in every other case outside the former scope of Chevron where one or both of the parties presents expert opinions to the court. That’s it. Honestly, overturning Chevron is mainly as impactful as it is because Congress isn’t sufficiently active at legislatively clarifying its vague statutory grants of regulatory authority or removing some of the more important substantive decisions from the whims of frequently changing executive branch administrations. In a parliamentary system where the government is supported by a legislative majority, both the laws and the regulations can be adjusted as needed, not just the regulations.

by cdolan 2y ago

jkaplowitz 2y ago

The overturning of Chevron doesn’t prevent executive branch agencies from unilaterally making law (in the form of legally binding regulations) through the Administrative Procedure Act process if they stay within one of Congress’s statutory grants of authority. “Unilaterally” is not the same thing as “immune to judicial review” or “entitled to automatic judicial deference”. What Chevron previously said is that, if the scope of the statutory grant of authority was ambiguous and the agency’s interpretation of that ambiguity was reasonable, then the court must defer to the agency’s interpretation. That requirement is now gone. Without the Chevron rule, courts will still uphold a regulation that was clearly statutorily authorized under the same conditions as when Chevron was good law, and they will still overturn regulations that were clearly not authorized by statute just as they did under Chevron. For ambiguous cases, the court now independently reaches their own judicial finding of law, just as they would if deciding whether a statute passed by Congress is authorized by the Constitution. Of course, courts still can and will give due consideration to the opinion of the agency and their subject-matter experts, just as they would consider the briefs and evidence from all parties to any dispute. Only the automatic deference which Chevron sometimes required is gone. Regarding the FTC non-compete rule, neither court ruling relied on Chevron. One court found the relevant statutory authority to be sufficient through their own independent judicial analysis rather than through Chevron deference, and one found it to be insufficient (a finding which never involved Chevron deference).

sqeaky 2y ago
But isn't the overturning of Chevron itself an example of the Court ignoring the authorizations of Congress? Congress delegated the authority to agencies to make regulations.
- pfdietz 2y ago
  No, I don't believe so.
- ethbr1 2y ago
  > Congress delegated the authority to agencies to make regulations. It did and it didn't. As parent was saying, Congress generally created each executive agency through a specific authorizing act, that also contained what it should do and its powers. Chevron (or its overturning) has to do with what happens when that authorization was ambiguous. Previously (Chevron), courts had to defer to the agency. Now they don't. Neither of which changes what courts have to do when the authorization is not ambiguous. Which is a lot of times.
  - tialaramex 2y ago
    "Which is a lot of times" You can always imagine an ambiguity into existence. Chevron deference meant that wasn't enough and now it is. Human natural languages are naturally ambiguous. This Supreme Court ruling encourages courts, especially Right-leaning courts to just declare that oops, this text was ambiguous and so even though it's obvious to any normal person that Congress did intend exactly the regulation at issue, a court can argue it isn't sure they meant that and so the regulations have no effect until Congress finds the time to spell it out to the court's satisfaction, which may be never. The bigger problem is that as judges find more and more tortured ways to fit their ideology onto the raw text this is further destroying trust in the justice system which erodes not just the republic, which presumably Republicans no longer give a shit about, but the United States of America itself, the country. Even an Autocrat needs that trust, the US isn't Monaco, it cannot be managed without a vast bureaucracy. What's notable about the present Supreme Court isn't that they're partisans, that's inevitable under the US system for decades at least. What's notable is that they're not very good judges. Scalia wasn't great but he was smarter than several of the newer justices which is at least something. And Thomas is a joke, if this man was on my magistrates bench I'd have him kicked out. When is the last time you saw a US Supreme Court decision which articulates a good principle of justice and uses that to explain the decision such that it seems in hindsight obvious and inevitable? There should be several of these each season, ideally the vast majority of decisions. Instead we get tortured logic and the sort of dubious attempts at reinterpreting somebody else's words by ignoring their plain meaning that would get you a poor grade in an undergraduate essay. This means more work for the justices, further over-burdening a system that is failing. Take Obergefell. The dissents are pretty stupid, but even the Kennedy decision is poor work, if this gets a passing grade in BA Law the lecturer is too generous. Yes, James Obergefell ultimately deserved at least what this decision gave him, but the decision can't bring itself to articulate a core principle to explain that. If the Supreme Court can't or won't take such a stance, why even have one?
pjmorris 2y ago
> For ambiguous cases, the court now independently reaches their own judicial finding of law, just as they would if deciding whether a statute passed by Congress is authorized by the Constitution. Does this mean that, in ambiguous cases, judges wind up in a position where their judicial expertise takes precedence over the technical expertise behind the statues?
- jkaplowitz 2y ago
  First of all, courts aren’t ruling on the merits of regulations, only on whether they were enacted with valid authority and following the correct procedure (including not being arbitrary and capricious). And the overturning of Chevron has nothing to do with how courts handle technical expertise behind statutes - it’s only about adjudicating the validity of regulations, not of statutes. So the rest of my comment discusses the case when opinions from a regulatory agency’s technical experts are somehow relevant to whether a regulation is valid and not just to the regulation’s merits or lack thereof. Judges are still either encouraged or expected (I forget which) to give due respect to the agency’s technical experts, based on pre-Chevron precedents. They’re definitely not forbidden from doing so. But for example, what if the challenger also presents technical expert opinions which run counter to the argument of the agency’s expert? Under Chevron, the court had no authority to conclude that the challenger’s expert-informed argument was more likely to be right than the agency’s expert-informed argument when both arguments are reasonable. Now that Chevron is overturned, the court does have that authority. Just like in every other case outside the former scope of Chevron where one or both of the parties presents expert opinions to the court. That’s it. Honestly, overturning Chevron is mainly as impactful as it is because Congress isn’t sufficiently active at legislatively clarifying its vague statutory grants of regulatory authority or removing some of the more important substantive decisions from the whims of frequently changing executive branch administrations. In a parliamentary system where the government is supported by a legislative majority, both the laws and the regulations can be adjusted as needed, not just the regulations.