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What you're describing would still be 100% possible. Chevron deference specifically applied when agencies tried to expand powers in ways that were not reasonabl

What you're describing would still be 100% possible. Chevron deference specifically applied when agencies tried to expand powers in ways that were not reasonably within their mandate. For a very high profile recent example when the CDC tried to expand the expired COVID related eviction moratorium, they did so under a section of the public health services act that granted them the power to carry out measures "necessary to prevent the introduction, transmission, or spread of communicable diseases." Claiming that banning evictions falls under there is a rather 'creative' interpretation, but it was initially allowed due to Chevon deference where judges were obligated to defer to the interpretations of regulatory agencies. If an agency is tasked with the 'prohibition of plastics, or related compounds, deemed reasonably likely to be harmful' then they would be fully capable of doing just that. With Chevron Deference they probably could then expand that mandate to then do something like claim regulatory authority over beaches owing to prohibited plastic waste washing ashore, but without it that would probably require a new law since that's clearly an unintended expansion of power.

sorcerer-mar 2y ago
> Chevron deference specifically applied when agencies tried to expand powers in ways that were not reasonably within their mandate Not true. And I mean literally definitionally not true. Chevron deference only applies (definitionally) when the agency's interpretation is reasonable. With Chevron deference, if a regulated entity challenged a rule, the court applied a two part test: Part 1. Is the matter resolved unambiguously by legislation? If yes: legislation wins. If no: proceed to Part 2. Part 2. Is the agency's interpretation of the legislation reasonable? If yes: the agency's rule wins. If no: the rule is bad. Without Chevron deference, if a regulated entity challenges a rule, it works this way: Part 1. Is the matter resolved unambiguously by legislation? If yes: legislation wins. If no: proceed to Part 2. Part 2. What's the court's opinion on the matter? That's the rule for this particular instance of the problem, with effectively zero binding authority on other instances of similar problems (e.g. a case on Compound x1 will have no bearing, a priori, on a virtually identical Compound x1.1)
- somenameforme 2y ago
  My use of "reasonable" might have made the matter confusing. I think "not reasonably within their mandate" and could be argued "to be reasonably within their mandate" are two very different things, but this is made much cleaner if I simply change reasonably to clearly. Without Chevron, regulators have to stay within the bounds of the mandate clearly legally granted to them by Congress. With Chevron, they could step far beyond those bounds, so long as there was a "reasonable" argument for it. Again the example with the CDC makes this very clear. A mandate enabling them to carry out actions "necessary to prevent the introduction, transmission, or spread of communicable diseases" like testing, inspections, quarantines, and so forth does not clearly (or even reasonably) grant them the right to also prevent evictions. But they could create a "reasonable" argument that, though ambiguous, it should. With Chevron this ambiguity was up to the regulator to decide themselves. Without Chevron, it's up to the judiciary to decide (if the regulator is sued). So circling back to the point here - the end of Chevron has absolutely 0 impact on the ability of a regulator under the clear mandate to 'ban unsafe plastics' from being able to 'ban unsafe plastics.'
  - sorcerer-mar 2y ago
    Again: no. Easiest way to explain is to correct your second paragraph: > [With or] without Chevron, regulators have to stay within the bounds of the mandate clearly legally granted to them by Congress. With Chevron, they could step far beyond [my interpretation of] those bounds, so long as [a court found the regulator's interpretation was reasonable]. Without Chevron, even if the agency's interpretation is reasonable, the court can just come up with their own interpretation in place of it. This effectively destroys regulators' ability to make rules across broader scopes of scenarios than the ones defined explicitly in legislation (Chemical X != Chemical X.1) or across broader jurisdictions than the ones tested in court (Chemical X can rather easily be disallowed in District 2, allowed in District 5 just based on different judges' interpretations of the specific cases before them, totally divorced from the scientific basis for the ban on the chemical itself). You seem to be drawing a distinction between whether their interpretation is reasonable versus whether a "reasonable argument could be made" that their interpretation is reasonable. The latter does not exist. The courts only test the former. You can read how the Chevron test was applied to remove the eviction moratorium because, in fact, it's not up to the regulator to decide themselves. Their interpretation is actually reviewable by the court and will be struck down if found to be unreasonable [1] > the end of Chevron has absolutely 0 impact on the ability of a regulator under the clear mandate to 'ban unsafe plastics' from being able to 'ban unsafe plastics.' Lol, if this were true then not one industrial group would care if Chevron stood for eternity. But in fact they're salivating over this decision. Care to share your theory for why that is? [1]: https://clearinghouse.net/doc/112509/ https://clearinghouse.net/doc/112509/

sorcerer-mar 2y ago

> Chevron deference specifically applied when agencies tried to expand powers in ways that were not reasonably within their mandate Not true. And I mean literally definitionally not true. Chevron deference only applies (definitionally) when the agency's interpretation is reasonable. With Chevron deference, if a regulated entity challenged a rule, the court applied a two part test: Part 1. Is the matter resolved unambiguously by legislation? If yes: legislation wins. If no: proceed to Part 2. Part 2. Is the agency's interpretation of the legislation reasonable? If yes: the agency's rule wins. If no: the rule is bad. Without Chevron deference, if a regulated entity challenges a rule, it works this way: Part 1. Is the matter resolved unambiguously by legislation? If yes: legislation wins. If no: proceed to Part 2. Part 2. What's the court's opinion on the matter? That's the rule for this particular instance of the problem, with effectively zero binding authority on other instances of similar problems (e.g. a case on Compound x1 will have no bearing, a priori, on a virtually identical Compound x1.1)

somenameforme 2y ago
My use of "reasonable" might have made the matter confusing. I think "not reasonably within their mandate" and could be argued "to be reasonably within their mandate" are two very different things, but this is made much cleaner if I simply change reasonably to clearly. Without Chevron, regulators have to stay within the bounds of the mandate clearly legally granted to them by Congress. With Chevron, they could step far beyond those bounds, so long as there was a "reasonable" argument for it. Again the example with the CDC makes this very clear. A mandate enabling them to carry out actions "necessary to prevent the introduction, transmission, or spread of communicable diseases" like testing, inspections, quarantines, and so forth does not clearly (or even reasonably) grant them the right to also prevent evictions. But they could create a "reasonable" argument that, though ambiguous, it should. With Chevron this ambiguity was up to the regulator to decide themselves. Without Chevron, it's up to the judiciary to decide (if the regulator is sued). So circling back to the point here - the end of Chevron has absolutely 0 impact on the ability of a regulator under the clear mandate to 'ban unsafe plastics' from being able to 'ban unsafe plastics.'
- sorcerer-mar 2y ago
  Again: no. Easiest way to explain is to correct your second paragraph: > [With or] without Chevron, regulators have to stay within the bounds of the mandate clearly legally granted to them by Congress. With Chevron, they could step far beyond [my interpretation of] those bounds, so long as [a court found the regulator's interpretation was reasonable]. Without Chevron, even if the agency's interpretation is reasonable, the court can just come up with their own interpretation in place of it. This effectively destroys regulators' ability to make rules across broader scopes of scenarios than the ones defined explicitly in legislation (Chemical X != Chemical X.1) or across broader jurisdictions than the ones tested in court (Chemical X can rather easily be disallowed in District 2, allowed in District 5 just based on different judges' interpretations of the specific cases before them, totally divorced from the scientific basis for the ban on the chemical itself). You seem to be drawing a distinction between whether their interpretation is reasonable versus whether a "reasonable argument could be made" that their interpretation is reasonable. The latter does not exist. The courts only test the former. You can read how the Chevron test was applied to remove the eviction moratorium because, in fact, it's not up to the regulator to decide themselves. Their interpretation is actually reviewable by the court and will be struck down if found to be unreasonable [1] > the end of Chevron has absolutely 0 impact on the ability of a regulator under the clear mandate to 'ban unsafe plastics' from being able to 'ban unsafe plastics.' Lol, if this were true then not one industrial group would care if Chevron stood for eternity. But in fact they're salivating over this decision. Care to share your theory for why that is? [1]: https://clearinghouse.net/doc/112509/ https://clearinghouse.net/doc/112509/