In 1984, the Supreme Court ruled in Chevron U.S.A. v. Natural Resources Defense Council that judges should defer to the reasonable interpretation of agencies in administering ambiguous federal laws. That deference continued to grow in later years to the point that some of us have warned of the emergence of a type of fourth branch of government.
The court went even further in Arlington v. FCC in giving deference to agencies even in defining their own jurisdiction. In dissent, Chief Justice John Roberts warned: “It would be a bit much to describe the result as ‘the very definition of tyranny,’ but the danger posed by the growing power of the administrative state cannot be dismissed.”
When I testified at the confirmation hearing of Neil Gorsuch, I noted that Chervon would likely be part of his legacy given his opposition to its use. Justice Gorsuch wrote in a 2022 dissent from denial of certiorari in Buffington v. McDonough that what he called “the aggressive reading of Chevron has more or less fallen into desuetude.” He added:
“At this late hour, the whole project deserves a tombstone no one can miss. We should acknowledge forthrightly that Chevron did not undo, and could not have undone, the judicial duty to provide an independent judgment of the law’s meaning in the cases that come before the Nation’s courts.”
The cases today concern federal requirements that commercial fishermen pay for at-sea monitors. Herring fishermen in New Jersey and Rhode Island are challenging the law in a case with a long list of amicus filings on both sides from groups, politicians, and businesses. The fishermen say that the monitors could put them out of business, costing up to 20 percent of their annual revenues in a business that is already marginal for profits. They argue that the government wants monitors (which they do not necessarily oppose) but lacked the funds. The decision was made to shift the costs to the fishermen and then citing Chevron to curtail judicial review.
One of the lead counsel is my friend and former colleague Columbia professor Philip Hamburger, a brilliant academic who believes that the doctrine has fundamentally distorted our tripartite constitutional system.
In both lower court cases, Chevron carried the day for the agency.
In addition to the New Jersey case, the court added the second, nearly identical one from Rhode Island to its calendar — presumably because Justice Ketanji Brown Jackson was recused in the New Jersey matter after serving on the appeals court panel that initially reviewed it before her elevation to the Supreme Court.
The ruling of the D.C. Circuit captured the theoretical divide.
Judge Judith Rogers wrote for the majority on the U.S. Court of Appeals for the D.C. Circuit and declared that the agency must get the benefit of any doubt. Notably, the court expressed a muddled view that “the Act may not unambiguously resolve whether the Service can require industry-funded monitoring.” The finding that the Act is “not unambiguous” takes a bit of working through in this context. However, the court ruled that “the Service’s interpretation of the Act as allowing it to do so is reasonable.”
Judge Justin Walker disagreed and said in dissent that “agencies are creatures of Congress, so they have no authority apart from what Congress bestows.”
Now the herring will get a hearing on who has to pay for monitoring of fishing operations.
Does anyone find it strange that in the first 24 hours after lawn boy announced his departure, there were zero posts from turdrunner?
This will be a heavy lift for SCOTUS but one that needs to be done in order to prevent the total engulfing of our State’s Rights by the Federalists. During the creation of our Constitution, many an anti-Federalist warned us that this ultimate take-over of our individual rights would be the result of an over-reaching Federal system and now we need to roll back this leviathan or lose the original vision of our nation. I sincerely believe that a finding for the fishermen could send the prog/left into fits of apoplexy and that would be a good thing.
“The cases today concern federal requirements that commercial fishermen pay for at-sea monitors.”
I assume these monitors are government employees, aren’t the fishermen already paying for the monitors in Fed Taxes, licenses, fuel taxes etc? If the monitors are so important to the agency cutback on other areas, that’s what the fishermen do to survive in business.
Being forced to pay for your at-sea monitor reminds me that the China commies charged a family for the bullet that was used to execute a family member.
Over many years, Congress has become increasingly lazy which has led to the explosive growth of the Administrative State. I agree this could be an interesting hearing since Justice Ketanji Brown Jackson doesn’t know what a woman is. Maybe she’s better with fish ?
Sebastian Gorka on why we need Trump in 2025.
https://youtu.be/sP08sIKXdLE
Thank you John. He is great. And correct.
On a completely unrelated note: Has anyone else noticed that the back end to the comment system on this blog has been upgraded?
The modern world is complicated and needs to be regulated properly. We take for granted that we have clean air, clean water, medications that are safe and effective, planes that do not crash (even when missing a door), and many other aspects of modern life that would have been heaven for those who lived in the past. Without Chevron, judges will be substituting their own opinions in place of those of experts. To have every regulation subject to over rule by a judge at their whim will lead to chaos and will bring down the economy.
That’s what congress is for.
Short, some laws easily understood by anyone.
These agencies have taken to a particular reading, most consistently with liberal wishes.
Make congress do its job.
Sammy says:
Government has become entirely too big and intrusive. Because of this, we must let them continue to do so.
My argument is that our modern regulatory state has done so much good that I don’t want to lose the benefits. I like knowing the medications I buy are not toxic or contaminated, that my water is tested for bacteria and lead, that planes rarely crash, that my bank deposit is safe. Every regulation we have is there because before the regulation bad things happened. Regulations might not be perfect, some might suck, but life is much better with them.
Oh yes, if Chevron goes, doors will fly off planes (already happened, so another self defeating argument) and nuclear power plants will explode.
And democracy is at stake in 2024.
So predictable.
“My argument is that our modern regulatory state has done so much good that I don’t want to lose the benefits. ”
And that argument is factually wrong. Most every benefit you think came from the “regulatory state” was delivered by the free market when standard of living rose sufficiently to afford it.
“I like knowing the medications I buy are not toxic or contaminated,”
Go to the grocery aisle of your local supermarket – there are hundreds of choices of breakfast cereals.
There is not a single law requiring that. Go to Starbucks and contemplate your choices of coffee.
If you “like” something enough – and standard of living is high enough – you will get it.
The things you like from modern life did not exist 100 years ago – either because they were not possible, or because we could not afford them.
“that my water is tested for bacteria and lead”
Except that really it is not. When you find problems with your water they are inevitably privately discovered and the result of government failure.
“that planes rarely crash”
Planes do not crash – because killing customers is bad for business.
“that my bank deposit is safe.”
You actually think it is ? An economic problem of sufficient scale to wipe out the majority of bank accounts will wipe out the federal govenrment.
Two and a half centuries ago Adam Smith noted “All money is a matter of beleif”.
This is one of the Core findings of Smith’s The Wealth of nations.
From the 15th through 18th centuries, Spain started as the worlds sole super power. I had vast power and ruled much of the world, it mined or confiscated most of the gold in the world. And despite this Standard of living in Spain slowly declined While England which focused on Trade rather than gold replaced Spain as the worlds’ sole superpower.
Why was 19th Century England vastly wore wealthy than Spain ?
Because Money is NOT wealth. Wealth is the value we produce – as individuals and as a nation.
When the FDIC guarantees your bank account all that means is that if everything goes to h311 the government has promised to confiscate the wealth of others to restore your money. While wealth – individually, nationally and globally is constantly growing as we produce. at any instant of time all wealth is zero sum. You can not give to one person without taking wealth from another.
I would note that Money is NOT wealth, it is something we have agreed to exchange for wealth.
Should the economy collapse such that you will have to pray for help from the FDIC –
there will not be sufficient wealth to confiscate to make you whole.
But the FDIC is useful with respect to small bank failures. In that context it is merely insurance and there is no reason it needs provided by the federal government.
You have private fire insurance and auto insurance – you do not need govenrment for those.
“Every regulation we have is there because before the regulation bad things happened.”
That is correct, but it is a ludicrously stupid assumption to beleive that regulation has any consequential impact on whether bad things happen. Even if that were true – it would require infinite govenrment and infinite time to deal with the infintie regulations needed to prevent all bad things – and we would all live in squallor – because no regulation in the world ever produced anything – and we do not live in caves because we produce enough wealth to afford not to. Regulation has no positive impact on that.
Bad things happen. The FACT is that broad based catastrophe nearly always REQUIRES government.
Only govenrment can get nearly everyone acting in the same way needed to cause broad catastrophes.
The housing bubble is the perfect example. Nearly every politician on the planent thinks that home ownership is a good thing – and it actually is. But there is almost nothing that we can not overdo.
The great depression was caused by the Federal reserve miscalculating interest rates flooding the market with credit that resulted in a market bubble – partly in housing, but Mostly in factories. By 1929 we had factories in operation or under construction capable of meeting 4 times the demand of americans. It should not be a surprise that the markets collapsed.
And the cause – like all large economic failures is monetary mistakes by govenrment.
The 2008 financial crisis has much the same causes – interest rates too low for too long, with too much credit extended resulting in a bubble in housing.
It is GOVERNMENT that can push the economy to move in one direction – and getting everyone moving the same direction – even for what appears to be a good cause ALWAYS produces a bad result.
As to being able to trust you medicine etc. The overwhelming majority of products that you buy are PRIVATELY certified – not govenrment certified. Whether it is UL, or CSA or Good Houskeeping or NFPA or myriads of other industry standards, what actually assures the quality and the safety of the things you buy are private certification bodies – usually industry created.
Govenrment does not have the expertise to know what is safe and what is not.
Almost everything as an example related to fire safety is driven by private bodies – that are often centuries old.
These formed often with the advent of insurance. Long before the first govenrment building code – insurers set standards for the buildings they would insure. You could build anyway you wanted. But you could not insure unless you complied with insurance company standards.
Even today – government building codes are mostly driven by insurance companies, and almost entirely cite PRIVATE standards like UL or NFPA.
Why ? Because govenrment does not have the resources, the knowledge or the skill.
” Regulations might not be perfect, some might suck, but life is much better with them.”
In reality there is absolutely no evidence for that claim.
Absolutely life has improved over time. But there is no correlation with regulations, but an absolute correlation with standard of living.
Child labor ends everywhere in the world – when the standard of living reashes the point at which people no longer need or want their children to work. Sometimes laws are passed, often they are not. Child labor ends regardless.
Everything you credit government with – happened on its own and would have happened with or without govenrment.
Another example would be OSHA. OSHA is 50+ years behind in workplace safety. There are almost no workplaces in the US today that are not far far far safer than OSHA requires. Why ? Because the value of workers and the value of time lost and the value of disruption in production from accidents is so high that businesses do far more than any regulations require to prevent workplace harms.
Everything you think is great about govenrment regulation is a LUXURY GOOD, that does not exist until standar of living is high enough to afford it, and comes about with or without government regulation when standard of living is high enough.
This should be obvious.
What is the purpose of regulations ? Top provide people with some benefit that they want – clean air, health, ….
Regulations do not happen unless people want something.
Further they do not happen unless we can actually afford that.
Do you think that the modern energy efficiency standards for refridgerators would have occured 75 years ago ?
Regulations emerge for the same reasons that producers improve their products.
Because people WANT something and becuase it has become possible.
The difference between regulations and markets is the use of FORCE that is all.
You really think that if Chevron is overruled these agencies will disappear? How naive.
Congress does not have the time, people, nor expertise to write proper regulations. Also, regulations can not be written to be easily understood by anyone. Can you understand the intricacy’s of nuclear safety, air traffic control, and cooperate governance? Maybe one of them.
Anyone that has enough age and experience with the over reach of an incompetent government will understand the message that is contained in my next sentence.
Have you seen how complicated and useless Federal Regulations regarding something as simple as a two gallon or five gallon gas can have become and how complex and generally unfit for use those items have become?
Apply that same concept to everything the Federal Government does.
The EPA and other Federal Agencies need their sails trimmed along with their budget, staffing, and their self made power in excess of what Congress has authorized them…..and in most cases even the authorizations are well in excess of real need and benefit.
I fervently hope this Supreme Court makes a clear stark decision that greatly provides the result that corrects that situation in perpetuity and begins to restrain the Federal Government to the enumerated powers.
Regaining much of our individual freedoms would be an immediate benefit to each of us individually and to the health and welfare of our society as a whole.
“Congress does not have the time, people, nor expertise to write proper regulations”
Correct – nor does government. Worse still government is massively inflexible and can not addpt to change or advances.
Markets can and do.
“Also, regulations can not be written to be easily understood by anyone. ”
An argument against them not for them.
How would driving work if no one could understand the laws ?
“Can you understand the intricacy’s of nuclear safety, air traffic control, and cooperate governance? Maybe one of them.”
Corporate governance is actually quite easy and the rules of corporate governance mostly date back to the 15th century.
Most air Traffic control in the world is private. Even in the US General aviation is private, flights below about 5000 ft outside of commercial airports is not only private – but really up to the pilot.
Air Traffic control is for the most part quite easy Outside of takeoff and landing in commercial airports is almost unnecescary
And a commerical airport can and mostly does manage its own air traffic driven by the airlines – because guess what Airlines need to land and take off safely.
The US could eliminate the FAA and the most likely result would be the rapid update of ATC systems because government got out of the way.
As to Nuclear – the actual dangerous parts of nuclear energy production are quite simple and relatively easy to make safe.
To the extent they are not that would primarily be because of government.
AGAIN one of the problems with regualtion is that it does NOT adapt as circumstances change.
And indistry tends to move towards designing to regulation instead of designing to newer best practices.
We have the technolgy today to design reactors that are far more efficient than current reactors and that Fail safe – Always.
The reasons we do not have those is … government regulations.
Congress does not have the time, people, nor expertise to write proper regulations.
Congress doen’t write legislation. Interest groups do. Our federal Agencies write legislation. The agencies are already writing the regulation. All that needs to happen is congress to pass the regulation.
“Can you understand the intricacy’s [sic] of nuclear safety, air traffic control, and cooperate governance?”
If you think that a government bureaucrat can, you’re delusional.
There is reasonable regulation and then there is stupid regulation: Federal courts hand down decisions impacting home appliances, renewable energy and petroleum
https://justthenews.com/politics-policy/energy/federal-courts-pass-down-decisions-impacting-home-appliances-renewable
If you go to buy a refridgerator, and it costs $30/yr less to operate but costs $100 more to buy – are you going to pay more ?
Nearly all of us will. There is no need for energy regulation at all.
Chevron deference is not about policy. It is about who decides. Under the constitution, Congress sets policy through legislation, and, in the event of a dispute about the meaning of a law, the courts say what it is. The only role for the executive is to enforce the law. Congress is permitted to delegate to the executive the limited power to decide how best to implement the unspecified details of clearly defined legislative policy, but is not permitted to delegate to the executive the task of making policy itself. It is up to the courts to decide whether action by the executive is within the scope of permissible delegation. The courts should not defer to just any “reasonable” interpretation by the executive, but should interpret the law itself. Anything less takes away from Congress and the courts the power that the constitution allocates to them and gives unconstitutional power to the executive.
In this case the question is whether Congress authorised the executive to tax fishermen for the cost of Federal observers. If it did not do so, through clear legislative language, the fishermen should win. The executive must not be allowed to construe silence or ambiguity as a permissible delegation.
Sammy,
The world is complicated and needs to be regulated properly – and the free markets have done that successfully.
You mention clean water, clean air, and medications.
All of this has been improving for centuries and the improvements started long before govenrment took an interest.
There is NO correlation between regulation and improvements in any of the things you mention – or anything else.
But there is an absolute correlation between all these – and MORE and standard of living.
As standard of living rises – People choose to spend their additional wealth on luxury goods – clean air, clean water, medications are all luxury goods.
As Hobbes noted long ago man’s life in nature is nasty brutish and short.
One of man’s earliest inventions – fire has also been a primary cause of death for 300,000 years of human existance.
Without fire we freeze to death or die from harmful critters in our food.
With fire we live longer and die from inhaling the toxic fumes produced by fire.
Long before there were clean air laws, bumans switched from burning dung and peat and wood to burning coal, and oil and then gas and now shifting to electric for heating and cooking.
We made those changes as standard of living rose enough to afford more expensive forms of energy.
This happened – all across the world at different times. The common thread was NOT government regulation. It was when a nations standard of living rose high enough to afford cleaner energy.
The same is true of clean water, and of medicine and of workplace safety.
Child labor has been a universal human constant for all of human existance.
It ends when a people are wealthy enough their children do not need to work.
It ends accross the globe – regardless of everything else – including government when a people reach a standard of living to be able to afford to do so.
Many on the left today advocate for alternatives to traditional law enforcement and incarceration. There is a great deal of data that supports arguments that these work – SOMETIMES, for SOME people, and at substantially higher cost.
Restorative justice, other means of dealing with crime have merit – when we are wealthy enough to afford them and so long as we do not presume they are a replacement for criminal justice rather than a supliment.
I have given a few examples above – but Every societal improvement follows this pattern – we improve when we are wealthy enough to do so.
Pyschologist Maslow formulated this about 70 years ago as Maslow’s hierarchy of needs. With rare exceptions humans do not address higher order “needs” until they have met more fundimential ones and have resources left over.
Aside fromt he FACT that this pattern is universal and divorced from govenrment and regulation.
The EVIDENCE is also that government regulation has nothing to do with it. It happens naturally with or without regulation.
There is pretty much no instance anywhere ever where you can see in real world data the impact of any regulation.
The trend towards improving water quality has no positive disruption as regulations from the clean water act took effect.
There is no difference between clean water and fair trade organic gluten free Kashi breakfast cereal. If a sufficient number of people want something – and have a high enough standard of living to afford it – the market will provide it.
We do have massive problems with the Markets. I listened to a debate between Check Uigar and Tucker Carlson recently.
Both agreed that the power of big business was more of a threat than the power of govenrment.
And both were wrong for exactly the same reason. In every instance where businesses behave badly, they do so because one way or the other they are protected from the market by the power of govenrment.
As Mao noted all power comes from the Barrel of a gun. Moderna does not have Guns. The FDA does.
Before regulations companies would sell “medications” that did nothing and were commonly harmful. Free market did not stop them.
Before regulations companies would produce meat in disgusting environments. Free market did not stop them.
Before regulations companies would dump toxic waste in streams, destroying the ecosystem. Free market did not stop them.
There are thousands of examples like those.
If you knew anything about farming, food production, you would know meat is still produced in disgusting environments.
Read Michael Pollan’s book The Omnivore’s Dilemma or books by Joel Salatin.
Get educated and informed.
The free market tried to get organic in its true form. Then big lobbying groups came in, corrupted the term, changed the definitions, and got the government to issue regulations that squashed the real organic movement in favor of big corporations with the assistance of big government.
Doctors Sue USDA for Ignoring Concerns Over Fecal Contamination of Chicken
“Poultry Slaughter Procedures, a USDA training video, reveals that the chicken slaughtering process ends with carcasses soaking in cold water—”fecal soup”—for up to one hour before being packaged for consumers. The Physicians Committee obtained this video through the Freedom of Information Act.”
https://www.pcrm.org/news/news-releases/doctors-sue-usda-ignoring-concerns-over-fecal-contamination-chicken
Big corporations use big government to get regulations passed that, through marketing, sound good to dupes like Sammy to think the government is acting in their best interest.
Ignorant or naive dupes like Sammy just nod their heads and never question what Big Brother tells them.
Before regulations companies would sell “medications” that did nothing and were commonly harmful.,
Sammy, a few months ago he FDA discovered most cold medicines do nothing at all.
That’s your grand federal agency at work. Its been wrong on regulated medicines for decades
Keep making claims that just are not true. You have been drinking the govt koolaide
Those cold medications were approved when drugs needed to prove to be safe, but did not require effectiveness. It would not be approved under modern regulations. Oddly Tylenol would also not be approved. Thank you for proving my point.
You do realize, don’t you, that The Jungle is a work of fiction, for which Sinclair did almost no research, and that every single one of the allegations contained in that book proved to be false.
But the uproar the book caused proved very convenient for the big meatpackers, who amplified and harnessed that uproar to manipulate the government into making regulations that would drive their smaller competitors out of business. The consumer ended up worse off.
Without Chevron, judges will be substituting their own opinions in place of those of experts
The only question to which Chevron is relevant is, “what does this statute mean?”. And judges are the only experts on that question. The constitution requires such decisions to be made by them and only by them. Just as the supreme court has said that Congress is not allowed to interpret the law, for the exact same reason the bureaucracy can’t be allowed to do so either. But Chevron says it can! That is why it must go.
What that will do to regulations you like is irrelevant. If planes will start falling out of the air, let them fall. If a regulation is not authorized by statute then it is illegal and invalid and enforcing it is a crime for which the bureaucrat who does so should go to prison. And only a judge can say whether the statute does or doesn’t authorize the regulation.
Re: “This massive doctrine, blamed for the dominance of the administrative state”
How about the dominance of the Warfare State? After the Court deals with this case, perhaps it could take up the rank illegality of Presidential war-making in contravention to Article 1, Section 8, Clause 11 of the Constitution.
What are you talking about? The president has an independent constitutional mandate to fight whenever the USA finds itself in a state of war, which does not require a declaration. The very first war the USA was in, the Quasi War against France, was never declared by either side, but the courts ruled that it was a war nonetheless. And the courts ruled that the Civil War began the day the first shots were fired, long before Congress got around to declaring it.
Also, which wars do you claim Congress didn’t declare? Are you under the bizarre impression that a declaration of war must contain some magic words, such as “We Declare War”?! Where can you have got such an idea? An Authorization for the Use of Military Force is a declaration of war, and every recent war has had one.
This is about protecting jobs as there is no nutritional requirement for Herring. The long term fishing abuses and environmental damage have come home to roost. The Market would say raise prices and tariff imports.
A J6 defendant who so far has had 3 specific instances in which the DOJ failed to provide exculpatory evidence,
and how even Tucker Carlson has not covered much of what is actually out there.
https://youtu.be/zxskx8Xtuig
Exculpatory evidence is evidence that could be used in their defense. That video shows her guilt even more.
John, the woman said, the Captain beating her 40 times with the baton and punching her got promoted. Once again, I ask for an investigation to find out if some of the Capitol Police were prompted to be more aggressive than they should have.
I think JJC has given an excellent answer. I see no reason to give the federal government any more power than that which is clearly delineated in the laws they pass. Congress is lazy and giving virtual or real lawmaking power to agencies is a short road to tyranny. It needs to be reined in. The government is Of the People, By the People, and For the People. I don’t see anything in there that says we give the government the benefit of the doubt. Why Should We?
Amendment X of the constitution says that powers not specifically delegated to the federal government or prohibited from the states, shall then be reserved to the states or the People.
I would maintain that unless a law clearly states that the federal government has a particular power in an area given to it by the constitution, it must not be allowed to be given the benefit of the doubt. It either clearly states what the power or acts are or they are denied to the federal government. That would be in the spirit and actual writings of the constitution. Congress must do it’s job and go on the record.
THANK YOU GEB, You are right on the mark. This is what our forefathers fought and dies for.
Every Supreme Court decision in which there was dissent should be open to being revisited and changed.
Judges, being only human, can make mistakes. Shouldn’t those prior mistakes be acknowledged?
Judges, being only human, can make mistakes.
Old.George, isn’t that the ultimate stare decisis? Once the old testament Judge handed down His decision on Adam and Eve, every judge since was born with the nature of fallibility. That alone should make every decision by the court(s) reviewable at some point in the future.
Molly Hemingway has a piece in The Federalist today that provides a very solid and surprisingly objective opinion of both cases before the court.
While predicting how the high court will rule is fraught with risk — especially before oral argument — various justices have been foreshadowing their predilections for some time. Justices Gorsuch, Thomas, and Kavanaugh have all criticized Chevron, and Justices Alito, Barrett, and Roberts have all denied agencies deference under the major questions doctrine.
These facts suggest a majority of the justices may be willing to overturn Chevron. And if they do, it will be a mortal blow to the administrative state.
https://thefederalist.com/2024/01/17/how-disgruntled-fishermen-could-prompt-scotus-to-capsize-the-administrative-state/
Good – About Time.
Coming on the heels of the Pharma-State, Petro-State, and Insurance-State … I’ve had enough.
The independent agencies have too much power, but not just because of Chevron. By creating such agencies, Congress delegates its legislative authority to the agencies, allowing them to enact laws, which they call rules and regulations.
Time for the Supremes to trash that practice. Hope springs eternal. Our untouchable administrative state is a clone of the EU bureaucratic state. Talk about unelected legislators gone wild! If this is allowed to go on, the entrenched party in the administrative state will continue to thwart any conservative WH or Congress. Won’t matter who is prezzie.
Mary, I like you analogy to the EU state.
“One of the lead counsel is my friend and former colleague Columbia professor Philip Hamburger, a brilliant academic who believes that the doctrine has fundamentally distorted our tripartite constitutional system.’
**********************************************
There is no question about that one as history has shown. Giving free reign to so-called “independent agencies” has ceded government authority to unelected (and agendized) bureacrats who wreak havoc on law, rights and citizens, alike. Like Roe it is(was) bad law and needs to go the way of Plessy.
“Not unambiguous”
Any opinion that contained those words i would stop reading then and there.
Ok, for the 1000th time granny. Jonathan doesnt proof read his posts and doesnt read your posts.
It isn’t Turley’s typo moron, it is the wording of the DC District’s opinion. This is why Turley called it muddled.
Easy big boy. Those are two separate posts. Typo was in response to granny62’s post below.
The inevitable daily “you got typo’s” crap that is said for no reason other than for someone to crow about their “reading skills”.
Gone are the days of copyediting in the media–and pretty much everywhere else.
“agencies are creatures of Congress, so they have no authority apart from what Congress bestows.””
No, they have no authority apart from what the Constitution allows Congress to bestow.
There is the whole rotten problem, right there.
And Chevron abdicates the duty of the judiciary and makes the 10th Amendment null and void.
Null and void.
Yes, the modern judiciary would rather make decisions about whether a .01% change in medical outcomes justifies decades of unfair treatment of millions of people, or decide when life begins, than determine whether Congress has usurped their power. Just create an agency, Congress, then they can do whatever they want, because, Chevron.
I missed the memo regarding the Supremes determining when life begins. I thought they ruled on the constitutionality of bad case law that gave power to the Feds to decide as much instead of leaving it to the states where it belongs. Dang.
“Anonymous”, you must be hungry…because Mary ate your lunch.
The key here may not be in weakening Chevron but in strengthening the Administrative Procedure Act that permits an aggrieved party – somone adversely affected by the agency’s Final Rule – to petition the U.S. Court of Appeals for the District of Columbia or the party’s district in which her business is located for a judicial review of the administrative record. This does not re-litigate the merits but provides an examination as to whether the agency complied with its own statutory authority, did not exceed it or abuse the agency’s discretion to interpret it, and was not arbitrary, capricious, or otherwise biased. The way to “cure” the Administrative State is to beef up the APA, open it it to any interested party rather than an aggrieved one, and reimburse petitioners that prevail for the legal; costs. Chevron, as most decisions of this kind, is not all bad but has been perverted over the years to advantage the state rather than the people served by the state. Giving the people more power is the answer, not taking it away from the state that in may instances, especially in technical areas, has the expertise and responsibility to render unpopular decisions sometimes in the best interest of the nation and the public.
WE already have a mess in other areas by “opening things up to any aggrieved party”.
That would make things worse not better.
This is simple. Chevron violates the constitution and is totally at odds with Marlboro v. Madison.
Resolving this will not fix the administratiove state.
Frankly the court should go completely the oposite and decide that unless the law is crystal clear, the executive has no power.
Congress can say what it means.
“Congress can say what it means.”
You mean make the law “not not unambiguous”?
Hey John, who is “Marlboro” and what was his beef with Madison? Just teasing, I enjoy your comments.
You dont remember that case?
It was big tobacco versus big bakery
John: I understand and appreciate your point but let’s be reealistic for a moment. We all like it when the FAA grounds all of Boeing’s 737 Max planes to make sure the bolts are tightened and doors don’t fall off in flight. We like a lot of other administrative rules and laws that protect our kids and ourselves from various dangers. The “deference” issue in Chevron simply tells judges that grant judicial review not to substitute their judgments for those of the scientists and technical experts of the administrative agencies. That seems sensible. So the review is focused solely on whether the agency properly reached its final action without bias or abuse of its statutory authority. Congress has the congressional power to make our laws but the Executive Branch, with the authority to enforce them, is given the power by Congress to write the rules and regulations of how the statutes must be enforced. Those rules and regulations must be consistent with the congressional intent of the statutes upon which they rest. We are just too big today for Congress to take over the job of codifying its laws. Things would come to a grinding halt if we insisted on Congress being “crystal clear” in what is intends. The answer as I said earlier is to give more power to the people to challenge regulations that they are adversely affected by and I agree with you that this should have limitations so that every administrative rule does not wind up being litigated for years and years.
Gentlemen, my compliments. This subject deserves more than sound bytes, and I appreciate the depth you’re bringing to it.
I’m not a lawyer. I’m just an old country cynic, but I think a little cynicism is called for.
My fear is that no matter what solution you arrive at, the disingenuous Left will find a way to game it. The subtext of your debate seems to support that.
The only thing ultimately that will help is public attention to any abuse. This is why I favor tight limits on THE SIZE of the administrative state. Once everything is regulated, how is it possible to regulate the regulators? The voters and legislators can’t track all the little federal fiefdoms.
A large administrative state will confound any law designed to manage it. The Left will make sure of it.
What the heck? Who put this troll face on my avatar?? What an embarrassment!
“The “deference” issue in Chevron simply tells judges that grant judicial review not to substitute their judgments for those of the scientists and technical experts of the administrative agencies.”
this characterization of chevron deference technically, legally, historically and completely inaccurate.
“those of the scientists and technical experts of the administrative agencies.”
Because the Constitution recognizes their authority to make law or the effect of law.
This law school video covers the issue in a couple minutes: https://m.youtube.com/watch?v=uHKujqyktJc
The “deference” issue in Chevron simply tells judges that grant judicial review not to substitute their judgments for those of the scientists and technical experts of the administrative agencies.
Their judgments on what? Not on the technical details of the regulations, or on their usefulness, but on the law. And on that subject, the judges are the experts, and yet Chevron tells them not to substitute their expert judgment, which the constitution requires them to use, for the inexpert opinion of agency lawyers.
“Congress can say what it means.”
That should be the motto of Congress. Why should something passed by Congress end up going to the courts, where the Justices can change it to make it legal? Unclear? Illegal? Throw the law out.
Congress needs to be treated like our children. Complete your work and do it right, preferably the first time.
Congress has to learn that when it passes a law, it must be 100% constitutional, and the law must say what it means. That will help force Congress to reduce the size of government.
Be careful what you wish for.
And don’t forget when you’re litigating against a federal agency. You’re litigating against DOJ.
Professor Turley, I so appreciate the content you create and the frequency at which you create it, but in doing so, you often fail to properly proofread, leaving errors which can diminish your credibility among some readers. Most times these errors are minor, but other times the mistakes change the meaning.
I and surely others here would gladly volunteer to proofread- no compensation or credit required!
As for today’s topic: GO, LITTLE FISH, GO!