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That line from the sub-headline is ridiculous. Nothing about the prior "regulatory environment" stopped Net Neutrality from being enforced, and then repealed an

That line from the sub-headline is ridiculous. Nothing about the prior "regulatory environment" stopped Net Neutrality from being enforced, and then repealed and then re-enforced all on the whims and changing of the person running the executive branch. The whole ostensible point of tossing the Chevron deference is exactly that arbitrary rules set not by laws but by whoever happens to be in charge this week and how they interpret vague holes in the law is unworkable. Is Net Neutrality the "law of the land"? The President said it was, and appointed people to make it so. Then the President said it wasn't, and appointed people to make it so. Now the President's mind has changed again, and they've appointed people to try and make it so. If any environment serves incumbents best, its one where the rules are made up as people come and go, where you only have to cozy up to a small group of people who are already part of your regulatory capture revolving door, and where annoying the wrong person can see your entire business shut down and destroyed.

consumer451 2y ago
How does forum shopping fit into this new environment? Instead of buying a lobbying campaign for your employee or sympathizer to be nominated as the head of an agency, is the most efficient move for incumbents now to simply shop around for a cooperative court?
- abduhl 2y ago
  Courts are bound by precedent below the Supreme Court. Eventually what a circuit court or the Supreme Court says will just be the Law and there will be no point to forum shop. Executive agency interpretations with Chevron intact? Not so much.
  - consumer451 2y ago
    That sounds like an idealized and non-politicized world of jurisprudence. There are circuit courts who have known biases, for example the 5th Circuit Court of Appeals is known to rule favorably towards some parties, while ignoring norms. [0] Why wouldn't certain parties with a national presence always shop for that forum? [0] https://www.google.com/search?q=5th+ciruit+court+bias https://www.google.com/search?q=5th+ciruit+court+bias
    - AnthonyMouse 2y ago
      > Why wouldn't certain parties with a national presence always shop for that forum? They might, but then the decisions can be appealed to the Supreme Court, which can overrule any decision they make. More to the point, it isn't the Supreme Court that makes the law, it's Congress. The courts are resolving ambiguities when Congress hasn't been clear. If any court interprets a statute in a way that Congress doesn't like, Congress can pass a new one that removes the ambiguity.
      - consumer451 2y ago
        > If any court interprets a statute in a way that Congress doesn't like, Congress can pass a new one that removes the ambiguity. That sounds great in theory, however our Congress is known to be useless and in total gridlock. Our Supreme Court is known to vote along 6/3 partly lines, all precedent be damned. These are predictable things, and given the known biases, this does not sound favorable towards agility which allows smart disruptive innovation, does it? It seems like we have given all the power to 6 Supreme Court justices. I hope that they have the budget to hire many more clerks, as they will need them to micromanage the federal government. From Justice Kagan's dissent on Chevron, page 82: > This Court has long understood Chevron deference to reflect what Congress would want, and so to be rooted in a presumption of legislative intent. Congress knows that it does not—in fact cannot—write perfectly complete regulatory statutes... > It knows that those statutes will inevitably contain ambiguities that some other actor will have to resolve, and gaps that some other actor will have to fill. And it would usually prefer that actor to be the responsible agency, not a court... > Put all that together and deference to the agency is the almost obvious choice, based on an implicit congressional delegation of interpretive authority. We defer, the Court has explained, “because of a presumption that Congress” would have “desired the agency (rather than the courts)” to exercise “whatever degree of discretion” the statute allows. Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735, 740–741 (1996). > Today, the Court flips the script: It is now “the courts (rather than the agency)” that will wield power when Congress has left an area of interpretive discretion. A rule of judicial humility gives way to a rule of judicial hubris. In recent years, this Court has too often taken for itself decision-making authority Congress assigned to agencies. The Court has substituted its own judgment on workplace health for that of the Occupational Safety and Health Administration; its own judgment on climate change for that of the Environmental Protection Agency; and its own judgment on student loans for that of the Department of Education. Emphasis above is mine. ___ edit after a couple upvotes: AFAICT, the administrative agencies are the only part of our government that has been functional in recent times. Look at what the FAA has managed to pull off with a very limited budget. FAA interpreted laws to allow what SpaceX, and the rest of New Space has accomplished. Now what? There weren't omniscient laws passed, so Blue Origin for example, could theoretically tie SpaceX up in court for new launch licenses? And the final call will be made by a law clerk, instead of space industry professionals?
- A4ET8a8uTh0 2y ago
  In a sense, sure, and it likely explains some level of upset over the rule change among the lobbyists, who had relatively clear rules and cozy cottage industry set up for themselves up until now. That said, it may be a little harder to shop for a judge than to install a friendly regime at an agency. I am not naive enough to say it can't happen, but it likely would be harder within the confines of the current system.
  - deleted 2y ago
    [deleted]
Defletter 2y ago
Yes, I agree, having policy like that switch so wildly from government to government causes problems. It is a problem. But it's a problem for Congress to solve, not the Supreme Court. Most if not all other developed nations have some equivalent to Chevron because the Courts are there to resolve issues of law, not of policy. You shouldn't want the Courts to interfere with policy just because you don't like it, or how it changes. Lobby your Senators and Representatives, not your Judges.
- kelnos 2y ago
  Half of Congress doesn't want to solve any of these problems though. They prefer a deadlocked federal government that can't get anything done.
  - Defletter 2y ago
    Sure, but Congress being dysfunctional does not give licence to the Supreme Court to do whatever it wants.
    - deathlight 2y ago
      Why not?
      - Defletter 2y ago
        Because while the post-war Confederation was anaemic, leading to the Founders adopting a new constitution that would give the federal government more power, it was only enough power as was deemed necessary at the time. For example, Congress must name the powers upon which it is acting. It may require nosediving down a rabbit hole of citations to other laws, but at the end of that trail is a reference to an enumerated power within the Constitution. Congress may be dysfunctional, but that doesn’t magically enumerate more powers to the Supreme Court; the Supreme Court must act within its remit. And as I mentioned in another thread, the federal judiciary is the least defined branch of the three, which given the enumerated nature of the Constitution should mean the federal judiciary should be the most restrained. Except that the Supreme Court has arguably become the most powerful branch due to their self-proclaimed stewardship of the Constitution that neither of the other branches can check or balance.
gamblor956 2y ago
That's not how federal agency rule making works, but why let reality get in the way of a good rant? As you note, the problem is with Executive Orders issued by the president. rlRules issued by federal agencies take years to draft, review, and take effect.... after multiple periods of public review.
- tpmoney 2y ago
  >Rules issued by federal agencies take years to draft, review, and take effect.... after multiple periods of public review. Which still hasn't stopped Net Neutrality from being not law, then law, then not law, and now law again in a span of less than 2 decades, without any acts of congress or new laws and all because the President and a couple executive administrators have changed their minds.
kelnos 2y ago
I agree, overall, but I don't think it's wise to throw out the ability of the executive branch to regulate just yet. First we need to fix the legislative branch's complete inability to govern, which is a much harder problem to solve. Otherwise we just create a vacuum where no regulatory decisions can be made at all. Granted, this does seem to be the goal of the GOP: they seem to like the state of things when the federal government is deadlocked and can't accomplish anything. Unfortunately fixing all this would likely require constitutional amendments, which is even more impossible than fixing Congress.
- tpmoney 2y ago
  Fortunately, we haven't thrown out the ability of the executive branch to regulate, as they very clearly regulated many things before 1984. And if there is ambiguity as to the authority of an executive agency to make rules within the scope of power given by congress, deferring to the agency by default seems to me to be a bad idea. For example, I would argue that almost all "strict scrutiny" decisions about free speech explicitly do NOT defer to the agency despite the agency having a "reasonable" interpretation of their scope of power, that's half the reason such cases make their way to the Supreme Court. The government is arguing their position is reasonable. And it might well be "reasonable" but the judicial and legislative history of the country requires applying a "strict scrutiny" standard, not a "reasonable" standard. It's my opinion that overall we are better for that, and when the law is ambiguous, the executive branch should get their say, but they shouldn't get special consideration.

consumer451 2y ago

How does forum shopping fit into this new environment? Instead of buying a lobbying campaign for your employee or sympathizer to be nominated as the head of an agency, is the most efficient move for incumbents now to simply shop around for a cooperative court?

abduhl 2y ago
Courts are bound by precedent below the Supreme Court. Eventually what a circuit court or the Supreme Court says will just be the Law and there will be no point to forum shop. Executive agency interpretations with Chevron intact? Not so much.
- consumer451 2y ago
  That sounds like an idealized and non-politicized world of jurisprudence. There are circuit courts who have known biases, for example the 5th Circuit Court of Appeals is known to rule favorably towards some parties, while ignoring norms. [0] Why wouldn't certain parties with a national presence always shop for that forum? [0] https://www.google.com/search?q=5th+ciruit+court+bias https://www.google.com/search?q=5th+ciruit+court+bias
  - AnthonyMouse 2y ago
    > Why wouldn't certain parties with a national presence always shop for that forum? They might, but then the decisions can be appealed to the Supreme Court, which can overrule any decision they make. More to the point, it isn't the Supreme Court that makes the law, it's Congress. The courts are resolving ambiguities when Congress hasn't been clear. If any court interprets a statute in a way that Congress doesn't like, Congress can pass a new one that removes the ambiguity.
    - consumer451 2y ago
      > If any court interprets a statute in a way that Congress doesn't like, Congress can pass a new one that removes the ambiguity. That sounds great in theory, however our Congress is known to be useless and in total gridlock. Our Supreme Court is known to vote along 6/3 partly lines, all precedent be damned. These are predictable things, and given the known biases, this does not sound favorable towards agility which allows smart disruptive innovation, does it? It seems like we have given all the power to 6 Supreme Court justices. I hope that they have the budget to hire many more clerks, as they will need them to micromanage the federal government. From Justice Kagan's dissent on Chevron, page 82: > This Court has long understood Chevron deference to reflect what Congress would want, and so to be rooted in a presumption of legislative intent. Congress knows that it does not—in fact cannot—write perfectly complete regulatory statutes... > It knows that those statutes will inevitably contain ambiguities that some other actor will have to resolve, and gaps that some other actor will have to fill. And it would usually prefer that actor to be the responsible agency, not a court... > Put all that together and deference to the agency is the almost obvious choice, based on an implicit congressional delegation of interpretive authority. We defer, the Court has explained, “because of a presumption that Congress” would have “desired the agency (rather than the courts)” to exercise “whatever degree of discretion” the statute allows. Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735, 740–741 (1996). > Today, the Court flips the script: It is now “the courts (rather than the agency)” that will wield power when Congress has left an area of interpretive discretion. A rule of judicial humility gives way to a rule of judicial hubris. In recent years, this Court has too often taken for itself decision-making authority Congress assigned to agencies. The Court has substituted its own judgment on workplace health for that of the Occupational Safety and Health Administration; its own judgment on climate change for that of the Environmental Protection Agency; and its own judgment on student loans for that of the Department of Education. Emphasis above is mine. ___ edit after a couple upvotes: AFAICT, the administrative agencies are the only part of our government that has been functional in recent times. Look at what the FAA has managed to pull off with a very limited budget. FAA interpreted laws to allow what SpaceX, and the rest of New Space has accomplished. Now what? There weren't omniscient laws passed, so Blue Origin for example, could theoretically tie SpaceX up in court for new launch licenses? And the final call will be made by a law clerk, instead of space industry professionals?
A4ET8a8uTh0 2y ago
In a sense, sure, and it likely explains some level of upset over the rule change among the lobbyists, who had relatively clear rules and cozy cottage industry set up for themselves up until now. That said, it may be a little harder to shop for a judge than to install a friendly regime at an agency. I am not naive enough to say it can't happen, but it likely would be harder within the confines of the current system.
- deleted 2y ago
  [deleted]

Defletter 2y ago

Yes, I agree, having policy like that switch so wildly from government to government causes problems. It is a problem. But it's a problem for Congress to solve, not the Supreme Court. Most if not all other developed nations have some equivalent to Chevron because the Courts are there to resolve issues of law, not of policy. You shouldn't want the Courts to interfere with policy just because you don't like it, or how it changes. Lobby your Senators and Representatives, not your Judges.

kelnos 2y ago
Half of Congress doesn't want to solve any of these problems though. They prefer a deadlocked federal government that can't get anything done.
- Defletter 2y ago
  Sure, but Congress being dysfunctional does not give licence to the Supreme Court to do whatever it wants.
  - deathlight 2y ago
    Why not?
    - Defletter 2y ago
      Because while the post-war Confederation was anaemic, leading to the Founders adopting a new constitution that would give the federal government more power, it was only enough power as was deemed necessary at the time. For example, Congress must name the powers upon which it is acting. It may require nosediving down a rabbit hole of citations to other laws, but at the end of that trail is a reference to an enumerated power within the Constitution. Congress may be dysfunctional, but that doesn’t magically enumerate more powers to the Supreme Court; the Supreme Court must act within its remit. And as I mentioned in another thread, the federal judiciary is the least defined branch of the three, which given the enumerated nature of the Constitution should mean the federal judiciary should be the most restrained. Except that the Supreme Court has arguably become the most powerful branch due to their self-proclaimed stewardship of the Constitution that neither of the other branches can check or balance.

gamblor956 2y ago

That's not how federal agency rule making works, but why let reality get in the way of a good rant? As you note, the problem is with Executive Orders issued by the president. rlRules issued by federal agencies take years to draft, review, and take effect.... after multiple periods of public review.

tpmoney 2y ago
>Rules issued by federal agencies take years to draft, review, and take effect.... after multiple periods of public review. Which still hasn't stopped Net Neutrality from being not law, then law, then not law, and now law again in a span of less than 2 decades, without any acts of congress or new laws and all because the President and a couple executive administrators have changed their minds.

kelnos 2y ago

I agree, overall, but I don't think it's wise to throw out the ability of the executive branch to regulate just yet. First we need to fix the legislative branch's complete inability to govern, which is a much harder problem to solve. Otherwise we just create a vacuum where no regulatory decisions can be made at all. Granted, this does seem to be the goal of the GOP: they seem to like the state of things when the federal government is deadlocked and can't accomplish anything. Unfortunately fixing all this would likely require constitutional amendments, which is even more impossible than fixing Congress.

tpmoney 2y ago
Fortunately, we haven't thrown out the ability of the executive branch to regulate, as they very clearly regulated many things before 1984. And if there is ambiguity as to the authority of an executive agency to make rules within the scope of power given by congress, deferring to the agency by default seems to me to be a bad idea. For example, I would argue that almost all "strict scrutiny" decisions about free speech explicitly do NOT defer to the agency despite the agency having a "reasonable" interpretation of their scope of power, that's half the reason such cases make their way to the Supreme Court. The government is arguing their position is reasonable. And it might well be "reasonable" but the judicial and legislative history of the country requires applying a "strict scrutiny" standard, not a "reasonable" standard. It's my opinion that overall we are better for that, and when the law is ambiguous, the executive branch should get their say, but they shouldn't get special consideration.