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I agree that it's a problem for congress to solve. But I disagree that the court is resolving an issue of policy. If policy carries penalties and the ability o

I agree that it's a problem for congress to solve. But I disagree that the court is resolving an issue of policy. If policy carries penalties and the ability of the government to punish you, then it is inherently a matter of law, because the government is inherently limited by the constitution only to the powers enumerated to it. And likewise, the powers of the executive branch to make policy is limited to the scope to which congress has (by law) granted them the power to make that policy. If the law isn't clear whether a given policy is within the scope of authority granted by congress, determining whether or not it is within the scope is an issue of law.

Defletter 2y ago
Sure, but Chevron never was blind deference: it was a precedent of judicial restraint, recognising that the democratically elected legislature had delegated authority via statute to the democratically elected executive. But that never stopped the Courts from making decisions on matters of law. Striking down a regulation because it violated the constitution was perfectly okay under Chevron. What's happened is that the Supreme Court is citing a precedent that gave itself extra-constitutional powers to declare things unconstitutional, to permanently wedge itself between the executive and legislative. It's no longer a co-equal branch; a check and balance. It's now a veto. The fact the Supreme Court is behaving this way is very concerning and fundamentally undermines its legitimacy.
- hnfong 2y ago
  You've got it wrong. The Chevron rule applies to situations where the government/executive branch interprets the laws (not constitution) passed by Congress. The rule says nothing about regulations being unconstitutional, and says nothing about striking down laws or regulations because they are unconstitutional. The Supreme Court recently reversed the Chevron decision, which, obviously could not be "extra-constitutional" in itself -- if you are right that Chevron was a precedent of judicial restraint, then reversing the restraint just means that at worst the SC is (ab)using its constitutional powers "without restraint" to interpret laws, but it isn't assigning itself "extra-constitutional" powers, and the reversal of the Chevron rule definitely isn't related to declaring things unconstitutional. Again, it's about declaring that the executive branch misinterpreted laws passed by Congress. I get that people are upset that the un-elected Supreme Court is overriding decisions made by democratically elected institutions, but constitutional law (not quite related here) and administrative law (which is what the Chevron rule was about) can be nuanced and there can be implications that aren't obvious to lay people. The political-affinity of such decisions also tend to cloud judgement.
  - Defletter 2y ago
    You misunderstand. Yes, Chevron was a level of deference given to agencies (like the EPA) to interpret their remit. If a law says "The EPA shall have authority to regulate emissions", then the EPA would be given deference to interpret what an emission is, and what a regulation is. They are the experts, after all. This was brought into sharp relief when a Supreme Court justice recently, and repeatedly, mistook nitrogen oxide (a greenhouse gas) for nitrous oxide (laughing gas). And by recently, I mean less than two weeks ago. Loper Bright Enterprises v. Raimondo, the case that overturned Chevron, repeatedly cites Marbury v. Madison, the case where the Supreme Court vastly expanded its own power by, in part, giving itself the extra-constitutional power to declare things unconstitutional. Indeed, some of the arguments in the opinions of the Court is that Chevron, or any deference, is unconstitutional because the Courts have sole discretion to interpret the law, "to say what the law is". The overturning of Chevron was not an abuse of extra-constitutional power, but it was a decision made from a Court hoisted with their own petards. It means every. single. interpretation. no matter how small, no matter how obviously within the scope of the statute, is now up for litigation in a full-scale trial with all the appeals that will follow. It is so massively disruptive that the Supreme Court would've immediately declared a Major Question if it were anyone else other than the Supreme Court doing it. But I guess the Supreme Court can act without limit and that's fine. > Again, it's about declaring that the executive branch misinterpreted laws passed by Congress. Not true. The Supreme Court didn't merely say that the National Marine Fisheries Service misinterpreted a law passed by Congress, it said that Chevron deference is overturned. It was the only thing the Supreme Court held in its decision. And this decision, as with most others, is very clearly the result of corruption and political alignment: if the composition of the Court had been different, the decision would have been different. This is a direct result of the Trump appointments, of having a conservative supermajority who are there to legislate from the bench. This cannot be ignored.
    - hnfong 2y ago
      > Loper Bright Enterprises v. Raimondo, the case that overturned Chevron, repeatedly cites Marbury v. Madison, the case where the Supreme Court vastly expanded its own power by, in part, giving itself the extra-constitutional power to declare things unconstitutional. If you're claiming Marbury v. Madison to be wrong... well, that was an unexpected twist and I must say I've totally misread your comment. I thought the main thrust of the argument in Loper was s706 of the Administrative Procedure Act though.

Defletter 2y ago

Sure, but Chevron never was blind deference: it was a precedent of judicial restraint, recognising that the democratically elected legislature had delegated authority via statute to the democratically elected executive. But that never stopped the Courts from making decisions on matters of law. Striking down a regulation because it violated the constitution was perfectly okay under Chevron. What's happened is that the Supreme Court is citing a precedent that gave itself extra-constitutional powers to declare things unconstitutional, to permanently wedge itself between the executive and legislative. It's no longer a co-equal branch; a check and balance. It's now a veto. The fact the Supreme Court is behaving this way is very concerning and fundamentally undermines its legitimacy.

hnfong 2y ago
You've got it wrong. The Chevron rule applies to situations where the government/executive branch interprets the laws (not constitution) passed by Congress. The rule says nothing about regulations being unconstitutional, and says nothing about striking down laws or regulations because they are unconstitutional. The Supreme Court recently reversed the Chevron decision, which, obviously could not be "extra-constitutional" in itself -- if you are right that Chevron was a precedent of judicial restraint, then reversing the restraint just means that at worst the SC is (ab)using its constitutional powers "without restraint" to interpret laws, but it isn't assigning itself "extra-constitutional" powers, and the reversal of the Chevron rule definitely isn't related to declaring things unconstitutional. Again, it's about declaring that the executive branch misinterpreted laws passed by Congress. I get that people are upset that the un-elected Supreme Court is overriding decisions made by democratically elected institutions, but constitutional law (not quite related here) and administrative law (which is what the Chevron rule was about) can be nuanced and there can be implications that aren't obvious to lay people. The political-affinity of such decisions also tend to cloud judgement.
- Defletter 2y ago
  You misunderstand. Yes, Chevron was a level of deference given to agencies (like the EPA) to interpret their remit. If a law says "The EPA shall have authority to regulate emissions", then the EPA would be given deference to interpret what an emission is, and what a regulation is. They are the experts, after all. This was brought into sharp relief when a Supreme Court justice recently, and repeatedly, mistook nitrogen oxide (a greenhouse gas) for nitrous oxide (laughing gas). And by recently, I mean less than two weeks ago. Loper Bright Enterprises v. Raimondo, the case that overturned Chevron, repeatedly cites Marbury v. Madison, the case where the Supreme Court vastly expanded its own power by, in part, giving itself the extra-constitutional power to declare things unconstitutional. Indeed, some of the arguments in the opinions of the Court is that Chevron, or any deference, is unconstitutional because the Courts have sole discretion to interpret the law, "to say what the law is". The overturning of Chevron was not an abuse of extra-constitutional power, but it was a decision made from a Court hoisted with their own petards. It means every. single. interpretation. no matter how small, no matter how obviously within the scope of the statute, is now up for litigation in a full-scale trial with all the appeals that will follow. It is so massively disruptive that the Supreme Court would've immediately declared a Major Question if it were anyone else other than the Supreme Court doing it. But I guess the Supreme Court can act without limit and that's fine. > Again, it's about declaring that the executive branch misinterpreted laws passed by Congress. Not true. The Supreme Court didn't merely say that the National Marine Fisheries Service misinterpreted a law passed by Congress, it said that Chevron deference is overturned. It was the only thing the Supreme Court held in its decision. And this decision, as with most others, is very clearly the result of corruption and political alignment: if the composition of the Court had been different, the decision would have been different. This is a direct result of the Trump appointments, of having a conservative supermajority who are there to legislate from the bench. This cannot be ignored.
  - hnfong 2y ago
    > Loper Bright Enterprises v. Raimondo, the case that overturned Chevron, repeatedly cites Marbury v. Madison, the case where the Supreme Court vastly expanded its own power by, in part, giving itself the extra-constitutional power to declare things unconstitutional. If you're claiming Marbury v. Madison to be wrong... well, that was an unexpected twist and I must say I've totally misread your comment. I thought the main thrust of the argument in Loper was s706 of the Administrative Procedure Act though.