7 ms·

In terms of realpolitik though, Congress is so deadlocked that new proposed legislation is unlikely to ever come and if it does, lobbyists and special interests

In terms of realpolitik though, Congress is so deadlocked that new proposed legislation is unlikely to ever come and if it does, lobbyists and special interests will have plenty of time to render it toothless. The coverage is not hyperbolic, it hits on real concerns that the courts will now be involved in every controversial decision. Previously, if your company was involved in something that would fall under the governance of a governmental agency, like dumping some new chemical into a body of water, the EPA could be brought in to make a ruling on the matter. Now, that ruling might not be in the best interest of that company depending on the level of regulatory capture. In our current world, that organization will now file a lawsuit to block the ruling of the govt organization and cite the removal of Chevron deference. Then a long, tedious process of court rulings might follow. With the ultimate ruling mentioning "the Clean Water Act does not mentioned chemical XYZ specifically by name". Resulting in the company continuing to release said chemical. When a new toxic chemical enters the water supply near your home, I hope that your congressman responds promptly. In my experience, they have been quite slow moving on most of my concerns...

BostonFern 2y ago
Is there evidence for the assumption that courts will be slower at responding to urgent cases than agencies, keeping in mind tools of the court like imposing a stay? In a complementary hypothetical scenario where you’re not being saved but rather harmed by an agency’s actions, with the matter being decided in the courts, you can now expect to have well established protections like due process and appeal.
- sleepybrett 2y ago
  Presidential Immunity sandbagging.
bigtex 2y ago
So unelected judges should be required to rely on the testimony of unelected bureaucrats?
- throwup238 2y ago
  Would you rather unelected experts make the decision, or unelected nonexperts who make stupid amateur-hour mistakes like confusing nitrous anesthetic (whippets!) with nitrogen oxide? [1] Even the Supreme Court has trouble differentiating its party drugs from its pollutants, with a level of understanding equivalent to a street junkie. Judges have no business making regulatory decisions, they should be left up to actual experts. [1] https://www.forbes.com/sites/alisondurkee/2024/06/28/supreme-court-corrects-epa-opinion-after-gorsuch-confuses-laughing-gas-with-air-pollutant/ https://www.forbes.com/sites/alisondurkee/2024/06/28/supreme...
  - lagichikool 2y ago
    The important difference is that judges are experts at impartiality, ethics, and decision making. They also can draw upon the expertise of multiple independent people. A huge part of law school is about teaching ethics, biases, and critical thinking. Which doesn't mean every judge is good at these things but even the average judge is much better than the average person. Politically appointed bureaucrats typically have none of these skills, are always beholden to people in power, and often are given an agenda to peruse. Congress outsourcing law making to bureaucrats is unconstitutional and SCOTUS made the right call legally. If it causes problems, Congress is empowered to fix it.
    - zzzeek 2y ago
      > The important difference is that judges are experts at impartiality, ethics, and decision making. please spare us, as Clarence Thomas continues to accept tens of millions of dollars in gifts and free airfare from billionaires with business before the court, unabated
      - lagichikool 2y ago
        Of course there is corruption but if you think that means all (or most) judges are corrupt, you're confused.
    - deleted 2y ago
roenxi 2y ago
> The coverage is not hyperbolic, it hits on real concerns that the courts will now be involved in every controversial decision. I don't get why that would be a "concern", that is their job. The job of the courts is to settle controversial decisions. They're one of 2 institutions we have in the anglosphere democracies that are competent to do that, the other being the parliaments. There is a lot of good theory - and practice - that the executive branch should be limited by consensus. The overall results are much better for everyone. > In terms of realpolitik though, Congress is so deadlocked that new proposed legislation is unlikely to ever come Happy to report that is just pessimism - I'd expect a democracy to very quickly enact laws that everyone agrees with and then sit deadlocked forever on everything else. The situation we face in the world doesn't change very often - it is mostly repeats of things that we've seen in the past.
- ethbr1 2y ago
  > I'd expect a democracy to very quickly enact laws that everyone agrees with and then sit deadlocked forever on everything else. The situation we face in the world doesn't change very often - it is mostly repeats of things that we've seen in the past. I'm not sure if this is satire or not. Absent election reform, that's certainly not what you're going to get in the US, in a world with an increasing pace of change.
- BadHumans 2y ago
  Legislation that everyone agrees with gets shot down because one side doesn't want to make the other side look good. Republicans torpedoed a recent border bill because they didn't want to give Biden brownie points.
  - roenxi 2y ago
    Do you have a reference to which bill you are talking about? I've lost all confidence in people ascribing motivations to politicians without a reference to what they've actually said.
    - BadHumans 2y ago
akira2501 2y ago
> Congress is so deadlocked that new proposed legislation is unlikely to ever come and if it does, lobbyists and special interests will have plenty of time to render it toothless. So.. let's actually fix that rather than using an undemocratic "hack" to work around it. Otherwise anyone who wants to take advantage of this merely needs to use their influence to foster this deadlock, which is probably less expensive and more repudiable, so is much more likely to be the mode. The question you really have to ask is why would judges be less deferential to businesses and large entities than congress? Aside from lacking the skill they have no power to investigate the issue, which congress does, and can only operate on the arguments put forth in front of them. This is _explicitly_ a game which is won by money or size, and we seem to know this in any other sphere, but suddenly it's acceptable because occasionally the government _is_ the 800lb gorilla, and occasionally it _is_ incidentally doing what the people would want, when the entity it's challenging is significantly smaller than it. Otherwise the best it seems to be able to do is fine super large entities for an amount equal to less than a day of revenue or month of profits.
- forgetfreeman 2y ago
  If you have a solution to comprehensive legislative capture at both state and federal levels in your back pocket by all means whip it out. Until one materializes that "hack" as you call it was the most effective method for government agencies to actually do their jobs.
  - akira2501 2y ago
    > If you have a solution to comprehensive legislative capture at both state and federal levels in your back pocket by all means whip it out. The capture is obviously not comprehensive, it's de jure, and fatalist attitudes like yours I suspect as being part of the problem here. It seems to me you're not actually interested in a solution, one which you could easily imagine for yourself just as I can, but you're interested in doing precisely what I worried about above. There are people who apparently _prefer_ the gridlock instead of being involved with their own government on any level. It truly is amazing to me. > Until one materializes that "hack" as you call it Since you speak the language of the bully, then please explain to me the utterly exigent issues that will befall us if we fail to obey basic constitutional law? > most effective method for government agencies to actually do their jobs. Government agencies are not entitled to determine what their job is. That is the role of Congress. This is why the "Due Care" clause exists. This is a democracy not a state of administrative convenience.
fdschoeneman 2y ago
So use the existing democratic process. Use your persuasion. Use your words.
- krapp 2y ago
  Your solution is for SomaticPirate to personally go to Congress like Mister Smith Goes to Washington and take the floor (somehow) and tell the representatives that they're mad as hell and not gonna take it any more? And then Congress will be so swayed by SomaticPirate's logic and rhetoric and passion that they'll burn the millions of dollars they're getting from corporate lobbyists and set aside their deeply entrenched partisanship, embrace, roll up their sleeves, undo their ties and govern like it's 1799? Do you think that's how government works in the real world?
  - refurb 2y ago
    Yes, organize. You’d be surprised how effective it is. My professor wanted a new law passed to support entrepreneurship. He went to “DC Days” to meet his Senator. Senator said “bring me a proposal”. Working with a local entrepreneurship org, he wrote up the law and the Senator brought it to the floor for a vote. It almost passed. Politicians listen to organized voters, not Hacker News posts.
    - underlipton 2y ago
      > It almost passed. This is an actual joke. Meanwhile, Flint's water crisis is past the 10-year mark and still not completely settled, despite massive, national pressure. Organizing isn't even effective at the state level, in many circumstances. The reason being that many of our institutions, and especially our courts, are nigh-hopelessly corrupt. No one went to jail for poisoning an entire city. And the entire thing would have been avoided if experts had had the leeway to tell miserly politicians and craven judges to f*ck off until they'd assessed the effects of the switch to Flint River water. https://www.nbcnews.com/news/us-news/10-years-flints-lead-water-crisis-was-discovered-lack-urgency-stalls-p-rcna148972 https://www.nbcnews.com/news/us-news/10-years-flints-lead-wa...
486sx33 2y ago
Congress is broken! So fix it Revive the regular process and do this by electing people who support it Limited debate is NOT democracy A motion for cloture is NOT democracy An appointed judge deciding policy is NOT democracy
- hansvm 2y ago
  I'm not quite sure what you're trying to accomplish at a high level? I mostly don't agree with the individual points and sentiment though, so for now I'll touch on a few of those. 1. Individuals don't revive the regular process. OP offered their opinions and took the time to write them well enough for us to form some of our own. Democracy, in its ideal form, measures a society of perfectly informed minds, each drawing on their own experience. Ours might not live up to that ideal, but calmly describing pros/cons in current policy doesn't seem like a bad move. It's also not mutually exclusive with voting the "right" people in. 2. Appointed judges deciding policy can absolutely be democratic. If we're allowed to be one step removed with a representative democracy, why not 2? It's a nuanced problem, not an ALL-CAPS emergency. 2a. Particular judges seem to currently be behaving badly with little recourse. Maybe we should fix that. Maybe Chevron is a smokescreen enabling that problem. If that's what's happening, we should call a spade a spade. Maybe in that case it's worth fighting the new Chevron decision as a stop-gap measure, but that's very different from arguing that it's a bad decision a priori. 3. We'll see what abuse happens (abuse always happens; most major laws are worth a retrospective to see what the 2nd order effects actually were), but the decision was, at face value, absolutely not about judges deciding policy. It was saying that when ambiguity requiring judging exists, a judge should resolve that ambiguity. That's not a God-given nugget of ethics, but it is stronger than you seem to be giving it credit for. 4. Somewhat unrelated, suppose an ideal world exists where this particular decision is revoked (posit the existence; I'm not currently arguing for the decision one way or the other). If the policy makes our country better in the next 1, 5, or 10 years, is it worth being held back just because we can imagine a hypothetical world with a better congress?
_heimdall 2y ago
The US political system was setup from the very beginning to be intentionally slow moving. The Chevron deference, and all of the executive regulations that followed, were a workaround to functionally make legislation at a faster pace than the system was designed for. I.e. the deadlock is a feature not a bug. One huge problem though, and one that you allude to, is that we've created a web of legal protections allowing corporations to get away with all kinds of stuff in tandem with the regulatory framework propped up by Chevron. The problem as I see it isn't that companies will get away with dumping toxic chemicals until Congress holds them responsible. The problem is that companies are allowed to grow so large and powerful that only an act of Congress can stop them.
- fny 2y ago
  In this case we’re talking about the Air Force, so yes congress would need to intervene. Pray tell, what does the size or influence of a company have to do with being able to dump chemicals? If it’s legal, it’s legal for everyone! Even little old me!
  - _heimdall 2y ago
    The comment I was replying to was talking about companies rather than the Air Force as mentioned in the OP. That said, company size and influence has plenty to do with dumping chemicals. Most importantly, they are able to buy regulatory cover for said dumping of chemicals. Dupont pulled this off extremely well, lying about what they knew to be damaging impact on ground water while buying off regulators who effectively looked the other way. It doesn't matter if dumping PFAS, in this case, is legal for me to do just like it is for a company or the Air Force. I am not engaging in activities that lead to a large amount of PFAS that I need to deal with.
  - AnthonyMouse 2y ago
    > In this case we’re talking about the Air Force, so yes congress would need to intervene. Well obviously not, the Air Force is under the command of the elected head of the executive branch. All you would need is for the President to tell them to do otherwise. Which kind of implies that the whole thing is a political act to make headlines before the election. Otherwise why is the Air Force challenging the interpretation of their own administration's EPA?
throw10920 2y ago
> In terms of realpolitik though, Congress is so deadlocked that new proposed legislation is unlikely to ever come Then we need to deal with that. Please think about it - if we try to subvert this system of checks and balances that we have, that subversion mechanism absolutely will be exploited by bad actors and/or the next party that gets into power. That's far worse than mere inaction while we try to straighten Congress out. The only people who want you to subvert the checks and balances are those who have not thought through this for five seconds, and those who want to take advantage of the hole you open.

BostonFern 2y ago

Is there evidence for the assumption that courts will be slower at responding to urgent cases than agencies, keeping in mind tools of the court like imposing a stay? In a complementary hypothetical scenario where you’re not being saved but rather harmed by an agency’s actions, with the matter being decided in the courts, you can now expect to have well established protections like due process and appeal.

sleepybrett 2y ago
Presidential Immunity sandbagging.

bigtex 2y ago

So unelected judges should be required to rely on the testimony of unelected bureaucrats?

throwup238 2y ago
Would you rather unelected experts make the decision, or unelected nonexperts who make stupid amateur-hour mistakes like confusing nitrous anesthetic (whippets!) with nitrogen oxide? [1] Even the Supreme Court has trouble differentiating its party drugs from its pollutants, with a level of understanding equivalent to a street junkie. Judges have no business making regulatory decisions, they should be left up to actual experts. [1] https://www.forbes.com/sites/alisondurkee/2024/06/28/supreme-court-corrects-epa-opinion-after-gorsuch-confuses-laughing-gas-with-air-pollutant/ https://www.forbes.com/sites/alisondurkee/2024/06/28/supreme...
- lagichikool 2y ago
  The important difference is that judges are experts at impartiality, ethics, and decision making. They also can draw upon the expertise of multiple independent people. A huge part of law school is about teaching ethics, biases, and critical thinking. Which doesn't mean every judge is good at these things but even the average judge is much better than the average person. Politically appointed bureaucrats typically have none of these skills, are always beholden to people in power, and often are given an agenda to peruse. Congress outsourcing law making to bureaucrats is unconstitutional and SCOTUS made the right call legally. If it causes problems, Congress is empowered to fix it.
  - zzzeek 2y ago
    > The important difference is that judges are experts at impartiality, ethics, and decision making. please spare us, as Clarence Thomas continues to accept tens of millions of dollars in gifts and free airfare from billionaires with business before the court, unabated
    - lagichikool 2y ago
      Of course there is corruption but if you think that means all (or most) judges are corrupt, you're confused.
  - deleted 2y ago

roenxi 2y ago

> The coverage is not hyperbolic, it hits on real concerns that the courts will now be involved in every controversial decision. I don't get why that would be a "concern", that is their job. The job of the courts is to settle controversial decisions. They're one of 2 institutions we have in the anglosphere democracies that are competent to do that, the other being the parliaments. There is a lot of good theory - and practice - that the executive branch should be limited by consensus. The overall results are much better for everyone. > In terms of realpolitik though, Congress is so deadlocked that new proposed legislation is unlikely to ever come Happy to report that is just pessimism - I'd expect a democracy to very quickly enact laws that everyone agrees with and then sit deadlocked forever on everything else. The situation we face in the world doesn't change very often - it is mostly repeats of things that we've seen in the past.

ethbr1 2y ago
> I'd expect a democracy to very quickly enact laws that everyone agrees with and then sit deadlocked forever on everything else. The situation we face in the world doesn't change very often - it is mostly repeats of things that we've seen in the past. I'm not sure if this is satire or not. Absent election reform, that's certainly not what you're going to get in the US, in a world with an increasing pace of change.
BadHumans 2y ago
Legislation that everyone agrees with gets shot down because one side doesn't want to make the other side look good. Republicans torpedoed a recent border bill because they didn't want to give Biden brownie points.
- roenxi 2y ago
  Do you have a reference to which bill you are talking about? I've lost all confidence in people ascribing motivations to politicians without a reference to what they've actually said.
  - BadHumans 2y ago

akira2501 2y ago

> Congress is so deadlocked that new proposed legislation is unlikely to ever come and if it does, lobbyists and special interests will have plenty of time to render it toothless. So.. let's actually fix that rather than using an undemocratic "hack" to work around it. Otherwise anyone who wants to take advantage of this merely needs to use their influence to foster this deadlock, which is probably less expensive and more repudiable, so is much more likely to be the mode. The question you really have to ask is why would judges be less deferential to businesses and large entities than congress? Aside from lacking the skill they have no power to investigate the issue, which congress does, and can only operate on the arguments put forth in front of them. This is _explicitly_ a game which is won by money or size, and we seem to know this in any other sphere, but suddenly it's acceptable because occasionally the government _is_ the 800lb gorilla, and occasionally it _is_ incidentally doing what the people would want, when the entity it's challenging is significantly smaller than it. Otherwise the best it seems to be able to do is fine super large entities for an amount equal to less than a day of revenue or month of profits.

forgetfreeman 2y ago
If you have a solution to comprehensive legislative capture at both state and federal levels in your back pocket by all means whip it out. Until one materializes that "hack" as you call it was the most effective method for government agencies to actually do their jobs.
- akira2501 2y ago
  > If you have a solution to comprehensive legislative capture at both state and federal levels in your back pocket by all means whip it out. The capture is obviously not comprehensive, it's de jure, and fatalist attitudes like yours I suspect as being part of the problem here. It seems to me you're not actually interested in a solution, one which you could easily imagine for yourself just as I can, but you're interested in doing precisely what I worried about above. There are people who apparently _prefer_ the gridlock instead of being involved with their own government on any level. It truly is amazing to me. > Until one materializes that "hack" as you call it Since you speak the language of the bully, then please explain to me the utterly exigent issues that will befall us if we fail to obey basic constitutional law? > most effective method for government agencies to actually do their jobs. Government agencies are not entitled to determine what their job is. That is the role of Congress. This is why the "Due Care" clause exists. This is a democracy not a state of administrative convenience.

fdschoeneman 2y ago

So use the existing democratic process. Use your persuasion. Use your words.

krapp 2y ago
Your solution is for SomaticPirate to personally go to Congress like Mister Smith Goes to Washington and take the floor (somehow) and tell the representatives that they're mad as hell and not gonna take it any more? And then Congress will be so swayed by SomaticPirate's logic and rhetoric and passion that they'll burn the millions of dollars they're getting from corporate lobbyists and set aside their deeply entrenched partisanship, embrace, roll up their sleeves, undo their ties and govern like it's 1799? Do you think that's how government works in the real world?
- refurb 2y ago
  Yes, organize. You’d be surprised how effective it is. My professor wanted a new law passed to support entrepreneurship. He went to “DC Days” to meet his Senator. Senator said “bring me a proposal”. Working with a local entrepreneurship org, he wrote up the law and the Senator brought it to the floor for a vote. It almost passed. Politicians listen to organized voters, not Hacker News posts.
  - underlipton 2y ago
    > It almost passed. This is an actual joke. Meanwhile, Flint's water crisis is past the 10-year mark and still not completely settled, despite massive, national pressure. Organizing isn't even effective at the state level, in many circumstances. The reason being that many of our institutions, and especially our courts, are nigh-hopelessly corrupt. No one went to jail for poisoning an entire city. And the entire thing would have been avoided if experts had had the leeway to tell miserly politicians and craven judges to f*ck off until they'd assessed the effects of the switch to Flint River water. https://www.nbcnews.com/news/us-news/10-years-flints-lead-water-crisis-was-discovered-lack-urgency-stalls-p-rcna148972 https://www.nbcnews.com/news/us-news/10-years-flints-lead-wa...

486sx33 2y ago

Congress is broken! So fix it Revive the regular process and do this by electing people who support it Limited debate is NOT democracy A motion for cloture is NOT democracy An appointed judge deciding policy is NOT democracy

hansvm 2y ago
I'm not quite sure what you're trying to accomplish at a high level? I mostly don't agree with the individual points and sentiment though, so for now I'll touch on a few of those. 1. Individuals don't revive the regular process. OP offered their opinions and took the time to write them well enough for us to form some of our own. Democracy, in its ideal form, measures a society of perfectly informed minds, each drawing on their own experience. Ours might not live up to that ideal, but calmly describing pros/cons in current policy doesn't seem like a bad move. It's also not mutually exclusive with voting the "right" people in. 2. Appointed judges deciding policy can absolutely be democratic. If we're allowed to be one step removed with a representative democracy, why not 2? It's a nuanced problem, not an ALL-CAPS emergency. 2a. Particular judges seem to currently be behaving badly with little recourse. Maybe we should fix that. Maybe Chevron is a smokescreen enabling that problem. If that's what's happening, we should call a spade a spade. Maybe in that case it's worth fighting the new Chevron decision as a stop-gap measure, but that's very different from arguing that it's a bad decision a priori. 3. We'll see what abuse happens (abuse always happens; most major laws are worth a retrospective to see what the 2nd order effects actually were), but the decision was, at face value, absolutely not about judges deciding policy. It was saying that when ambiguity requiring judging exists, a judge should resolve that ambiguity. That's not a God-given nugget of ethics, but it is stronger than you seem to be giving it credit for. 4. Somewhat unrelated, suppose an ideal world exists where this particular decision is revoked (posit the existence; I'm not currently arguing for the decision one way or the other). If the policy makes our country better in the next 1, 5, or 10 years, is it worth being held back just because we can imagine a hypothetical world with a better congress?

_heimdall 2y ago

The US political system was setup from the very beginning to be intentionally slow moving. The Chevron deference, and all of the executive regulations that followed, were a workaround to functionally make legislation at a faster pace than the system was designed for. I.e. the deadlock is a feature not a bug. One huge problem though, and one that you allude to, is that we've created a web of legal protections allowing corporations to get away with all kinds of stuff in tandem with the regulatory framework propped up by Chevron. The problem as I see it isn't that companies will get away with dumping toxic chemicals until Congress holds them responsible. The problem is that companies are allowed to grow so large and powerful that only an act of Congress can stop them.

fny 2y ago
In this case we’re talking about the Air Force, so yes congress would need to intervene. Pray tell, what does the size or influence of a company have to do with being able to dump chemicals? If it’s legal, it’s legal for everyone! Even little old me!
- _heimdall 2y ago
  The comment I was replying to was talking about companies rather than the Air Force as mentioned in the OP. That said, company size and influence has plenty to do with dumping chemicals. Most importantly, they are able to buy regulatory cover for said dumping of chemicals. Dupont pulled this off extremely well, lying about what they knew to be damaging impact on ground water while buying off regulators who effectively looked the other way. It doesn't matter if dumping PFAS, in this case, is legal for me to do just like it is for a company or the Air Force. I am not engaging in activities that lead to a large amount of PFAS that I need to deal with.
- AnthonyMouse 2y ago
  > In this case we’re talking about the Air Force, so yes congress would need to intervene. Well obviously not, the Air Force is under the command of the elected head of the executive branch. All you would need is for the President to tell them to do otherwise. Which kind of implies that the whole thing is a political act to make headlines before the election. Otherwise why is the Air Force challenging the interpretation of their own administration's EPA?

throw10920 2y ago

> In terms of realpolitik though, Congress is so deadlocked that new proposed legislation is unlikely to ever come Then we need to deal with that. Please think about it - if we try to subvert this system of checks and balances that we have, that subversion mechanism absolutely will be exploited by bad actors and/or the next party that gets into power. That's far worse than mere inaction while we try to straighten Congress out. The only people who want you to subvert the checks and balances are those who have not thought through this for five seconds, and those who want to take advantage of the hole you open.