I'm sorry, I need to just set all the legal stuff aside for a second and say- how DARE the most partisan group of assholes on planet Earth pretend like they are fair arbiters of justice when they routinely ignore every truth they find inconvenient. I absolutely hate them.
The demise of Chevron deference will be absolutely devastating and serve to further erode the ability for necessary governmental institutions to be responsive to our societal needs and evolution.
General Prelogar was marvelous. I mean, she always is. But she was extra marvelous today. She had an answer for every argument Martinez and Clement had, and every argument the conservative members posited. She was unfailingly on point, concise, and persuasive. She has a command that rivals Lisa Blatt - without the trademark aggressiveness but with a steel sharpness of argument.
Chris is being disingenuous when he says, “If the court creates rules like the major questions doctrine that prevent the executive branch from acting under existing laws when big new problems arise, it is limiting government’s ability to respond to those problems. “
Actually, the “government” can still respond appropriately, but the response won’t be limited to our royal executive branch, throwing edicts around and then changing policy every administration that has a different point of view. The Congress could actually do its job and weigh in, and the judges would just say whether the statutes or rules are unconstitutional, or if the rules don’t comport with the statute. It’s actually pretty simple, if the whole system was used. The executive power is much too strong now, and the system is unbalanced.
Yeah. The only teeny tiny problem with that is that Congress is pretty much useless. You have noticed they've been unable to pass any laws recently? And the political division in this country is growing, not shrinking.
It's only a benefit to those who benefit from fewer laws. Which would be those who are already quite wealthy and powerful and do not like restraints on their behavior. The rest of the people would prefer a democracy that works, not one in which the design feature is 'no government '.
Wishful thinking. Congress can’t pass shit with the GOP majority.
Also, as with Roe, no precedent is safe with this current bought and paid for Supreme Court majority. They’re extremely talented at bending the law to please their billionaire sugar daddy’s wants and needs. And as with the chipping away of Roe, this chipping away of administrative power has been a 50 year project.
"Our royal executive branch" is elected, restrained by funding authorized by Congress, and a range of other things. It is not quite King George III.
The job of Congress includes passing laws where administrative agencies pass regulations. Congress made policy choices that gave the executive wide discretion from the beginning. Scholars have written about this in detail.
New administrations, at times addressing new realities, have discretion. It's part of the system.
OMG. Alito "raised the question by saying that Chevron was “so popular” because there was a “concern” that judges were “allowing their policy views … to influence their interpretation” of laws. Then, with a straight face, he asked, “Why was that fear unfounded? Why do you think now that the fear was unfounded?“" Is he really that blind to the reality of his own corruption????
Justice Kagan was so on point with her "dietary supplement" example, and how is a judge supposed to determine the bonafides of a manufacturer's claims? Removing agency expertise from any technical assessment, whether by invoking the factitious "major questions" doctrine, or simply barring enforcement of existing statutes because "divining" of Congressional intent is a court's remit and not that of a federal agency, is a right-sing fever dream now about to be reified in a SCOTUS majority.
Long time coming, and corporate and business interests are on the cusp of a major coup, tbh.
And you know what, I will fully expect shit like this to come back to bite them in the ass if they do away with Chevron. I will want people to challenge even the dumbest shit and load the courts up.
If we wanted to imagine a happy ending, it would be the need for a much expanded federal judiciary..... at a time when the president appointing all these new judges is a Democrat. That only works if Democrats win the elections though (and the Senate is very difficult).
My husband is a CPA, the IRS is already understaffed. How will we fund the government if wait for months in courts for decisions? State vs federal tax law too. What a mess.
Sigh. All of this has been a long time coming, because we've been pretending for a long time.
Ever since it became apparent many decades ago (between Brown v. Board of Education and Roe v. Wade, encompassing the civil rights era) that the American government might take into consideration interests other than those of White heterosexual Christian men, a large portion of the population has been plotting to 'take their country back'. Conservatism since at least 1968 has been defined by this, and what it boils down to is, if they can't own the government, then they're not going to let there be a government.
The U.S. Constitution is a very conservative document which greatly assists them in their task. By design it's very hard to get anything done, and just in case, conservative voters get an extra leg up with the non-representative composition of the Senate.
The workaround that's been in place to sustain a functional government has been to allow the executive branch great discretion and great leeway, because the other two branches are so much more dysfunctional. Not coincidentally, the executive branch is also the easiest of the three for liberals and progressives to win.
This setup has allowed us to limp along and (barely) muddle through for the past several decades. But yes, power has become increasingly concentrated with the executive.
The regressive nature of the constitution ultimately wins out though. It just took many decades of concentrated effort by conservatives to see it realized. They have the federal judiciary, and they can keep Congress out of Democrats' hands. The final piece is to constrain the executive should the president be a Democrat.
The end goal is that government will either be conservative or it will not function at all. The question is whether the American people will tolerate this state of affairs. And, if not, what they will do about it.
Again, this has been building for many decades. There's a reason no other country has a constitution that dates back to the 1700s, written only by wealthy White men, many of whom owned slaves. We're running out of ways to make this constitution work anymore. If this country can't be governed, at least not democratically - and that is very clearly one side's goal and has been for a long time - then what comes next? We are getting very close to finding out.
It seems to me that the whole saga of Chevron is utterly political. Wasn’t Chevron decided by a right-wing court in order to help right-wingers like Anne Gorsuch in the right-wing Reagan administration gut environmental regulation? And now that the right wing has lost influence in Democratic administrations, the same right-wing court, led by none other than Gorsuch Jr., wants to take that power back? Power for me, but not for thee.
There is a lot of wisdom in your thoughts. Meritocracy is a difficult system. It requires people to take their own life. Seriously, get away from the screens, and actually work themselves to the bone to get ahead.
Too many large corporations have seized government and taken over the agencies, then they create the rules. So- called “public-private partnerships“ have been devastating, resulting in the marriage of corporate power with state and federal power. There’s a really good argument for small government right there.
It’s an interesting how you say the government can somehow marshal “resources to give everyone opportunity.” For example, government has been marshaling resources to alleviate poverty in America for well over 60 years in a very concerted effort, but the poverty rate remains between 12 and 15% or somewhere thereabouts, no matter what they do. Alternatively, if people didn’t have the government to depend on, we might actually have to start depending on each other again.
Interesting conversation. On the point, I don’t think judges should be deferring to executive power, because it guts their judicial power to assess the legality of statutes and rules both.
You are wrong on that. Judges already can determine whether an agency exceeded its authority, abused its power or discretion, failed to follow the APA rules in enacting regulations, and can decide whether a rule is unconstitutional. The Chevron doctrine applies to courts being the ones deciding whether the expertise itself of the agency is wrong. It does NOT require complete deference to an agency's decision. If compelling evidence shows that the expertise IS wrong, it can decide that. "Deference" doesn't mean "enslavement."
Yeah, I'm not instinctively big government. There was a time in my life when I would have agreed with everything you said instead of just some of it. Then Trump came along and the light bulb went off and I said, 'A-ha, that's who these people really are,' and my priority ever since has been to fight that. Mostly, I'm against illiberalism. And ever since Trump I am keenly aware of the power of privilege, and how it can boost the most reprehensible among us. But left-wing solutions bring their own problems; I just don't find combatting that to be the priority right now given the other threats. I agree the executive branch has too much power, but I'm deeply skeptical of the motives of those who most want to take that power away. Until we find a way to break out of the current political paradigm I don't see much improving.
Wouldn't a reversal in this case let Judge Kacsmaryk decide for himself whether mifepristone is safe? If the Extremes don't use the standing issue to squelch him, that would seem to be the logical decision in that case. Pretty sure Congress didn't mention mifepristone in the enabling statute.
Also, remember places like the FDA also looks at whether new drugs are effective, not just safe. Can you imagine the snake-oil we'd be getting if pharma sued to get approval of, say, bleach pills to fight Covid? Even nice safe ones
Looks like turning the entire regulatory process into antitrust law, which will be great business for litigators, expert witnesses and the vast array of professional support for these services. Congress passes only high-level, somewhat vague laws and then the courts and the Court build up vast amounts of jurisprudence to ... um ... execute regulations about those laws. What could possibly go wrong?! Just think what this will do for the convention business! Just imagine the speakers' fees! /s
Dismantling of democracy from the top down with Alito, Thomas, Gotsuch, et Al. It’s too much. From the voter suppression attempts in state after state, to the House led by an election denier who has his son monitor his porn and his daughter sign a purity pledge, to Texas allowing a migrant mom and her two children to drown, and the former president who continues to thumb his nose at the law because he’s convinced he will be able to make it all go away when he wins legitimately or illegitimately in November, it’s just too much. Is it too late to right the ship at this point?
Assault on Chevron. As expected, another important Supreme Court precedent made it to the Republican hit list at today’s Supreme Court oral argument challenging courts’ long-standing deference to federal administrative agencies’ technical and scientific expertise. This will make it harder to protect the public in matters like the environment, food & drug safety, banking, health care & anti-trust enforcement. Chris’ summary helps tell you what you need to know at this point.
I’m not sure how many fewer laws we’re talking about, but it does raise the question “how many laws are enough?“
I am not sure I understand what you mean that people want democracy that works, because I’m not aware of a democracy since ancient Greece, but maybe you have a definition that I don’t understand.
America has a republic with a federalist system, (both horizontal and vertical federalism). We really do not have a democracy, and it is incorrect to call our current governmental structure a democracy. Have you read Montesquiou?
People want opportunity, for everybody, not just a select few. Meritocracy is not a natural system; the natural system is for the wealthy and powerful to pass on their wealth and power to their own descendants, and that describes most of human history and most of the world still today. Some countries and societies have made some progress past that; we call them advanced or highly developed nations. That takes government - a system of rules for fair play, resources to give everyone opportunity - and in the absence of that, you revert to a system in which everything is hereditary. Many of us don't want that. For others, it suits them very well. Try eliminating social security, medicare, and any type of publicly funded education or publicly funded infrastructure, and you'll see which side most people come down on. Try eliminating laws governing business practices, and watch how people react when the cheating and stealing starts. Eliminate environmental laws and safety laws and see how people respond to the destruction. These are the things I'm talking about.
Probably not. What's going to be important is how the American people respond to a failed state, or to a fascist state. One can hope for the best but we really don't know until it actually happens.
I'm sorry, I need to just set all the legal stuff aside for a second and say- how DARE the most partisan group of assholes on planet Earth pretend like they are fair arbiters of justice when they routinely ignore every truth they find inconvenient. I absolutely hate them.
The demise of Chevron deference will be absolutely devastating and serve to further erode the ability for necessary governmental institutions to be responsive to our societal needs and evolution.
“Necessity” has been the justification for every extension of extra-legal power over eight centuries.
General Prelogar was marvelous. I mean, she always is. But she was extra marvelous today. She had an answer for every argument Martinez and Clement had, and every argument the conservative members posited. She was unfailingly on point, concise, and persuasive. She has a command that rivals Lisa Blatt - without the trademark aggressiveness but with a steel sharpness of argument.
It doesn't matter...as with Dobbs, the arguments are irrelevant when the decision has already been made.
Chris is being disingenuous when he says, “If the court creates rules like the major questions doctrine that prevent the executive branch from acting under existing laws when big new problems arise, it is limiting government’s ability to respond to those problems. “
Actually, the “government” can still respond appropriately, but the response won’t be limited to our royal executive branch, throwing edicts around and then changing policy every administration that has a different point of view. The Congress could actually do its job and weigh in, and the judges would just say whether the statutes or rules are unconstitutional, or if the rules don’t comport with the statute. It’s actually pretty simple, if the whole system was used. The executive power is much too strong now, and the system is unbalanced.
Yeah. The only teeny tiny problem with that is that Congress is pretty much useless. You have noticed they've been unable to pass any laws recently? And the political division in this country is growing, not shrinking.
Gridlock is a design feature, actually a benefit of the system. If the people can’t figure out what laws they want made, then they don’t get made.
It's only a benefit to those who benefit from fewer laws. Which would be those who are already quite wealthy and powerful and do not like restraints on their behavior. The rest of the people would prefer a democracy that works, not one in which the design feature is 'no government '.
Who do you think this gridlock benefits? Spoiler alert: it isn’t average Americans making less than 7 figures
like for money to run the government? I dare say most people don't want a shut down.
Wishful thinking. Congress can’t pass shit with the GOP majority.
Also, as with Roe, no precedent is safe with this current bought and paid for Supreme Court majority. They’re extremely talented at bending the law to please their billionaire sugar daddy’s wants and needs. And as with the chipping away of Roe, this chipping away of administrative power has been a 50 year project.
"Our royal executive branch" is elected, restrained by funding authorized by Congress, and a range of other things. It is not quite King George III.
The job of Congress includes passing laws where administrative agencies pass regulations. Congress made policy choices that gave the executive wide discretion from the beginning. Scholars have written about this in detail.
New administrations, at times addressing new realities, have discretion. It's part of the system.
🤡
Right. The new Supreme Court constitutional test . . . “you got five votes?”
New?
OMG. Alito "raised the question by saying that Chevron was “so popular” because there was a “concern” that judges were “allowing their policy views … to influence their interpretation” of laws. Then, with a straight face, he asked, “Why was that fear unfounded? Why do you think now that the fear was unfounded?“" Is he really that blind to the reality of his own corruption????
There are exactly and only two types of conservative: those that drink the kool-aid, and those that serve it to others. So take your pick.
No he’s not. He’s very clear and is using the “dumb as a fox” methodology for his “quest” - oops questions...
Justice Kagan was so on point with her "dietary supplement" example, and how is a judge supposed to determine the bonafides of a manufacturer's claims? Removing agency expertise from any technical assessment, whether by invoking the factitious "major questions" doctrine, or simply barring enforcement of existing statutes because "divining" of Congressional intent is a court's remit and not that of a federal agency, is a right-sing fever dream now about to be reified in a SCOTUS majority.
Long time coming, and corporate and business interests are on the cusp of a major coup, tbh.
And you know what, I will fully expect shit like this to come back to bite them in the ass if they do away with Chevron. I will want people to challenge even the dumbest shit and load the courts up.
If we wanted to imagine a happy ending, it would be the need for a much expanded federal judiciary..... at a time when the president appointing all these new judges is a Democrat. That only works if Democrats win the elections though (and the Senate is very difficult).
My husband is a CPA, the IRS is already understaffed. How will we fund the government if wait for months in courts for decisions? State vs federal tax law too. What a mess.
Sigh. All of this has been a long time coming, because we've been pretending for a long time.
Ever since it became apparent many decades ago (between Brown v. Board of Education and Roe v. Wade, encompassing the civil rights era) that the American government might take into consideration interests other than those of White heterosexual Christian men, a large portion of the population has been plotting to 'take their country back'. Conservatism since at least 1968 has been defined by this, and what it boils down to is, if they can't own the government, then they're not going to let there be a government.
The U.S. Constitution is a very conservative document which greatly assists them in their task. By design it's very hard to get anything done, and just in case, conservative voters get an extra leg up with the non-representative composition of the Senate.
The workaround that's been in place to sustain a functional government has been to allow the executive branch great discretion and great leeway, because the other two branches are so much more dysfunctional. Not coincidentally, the executive branch is also the easiest of the three for liberals and progressives to win.
This setup has allowed us to limp along and (barely) muddle through for the past several decades. But yes, power has become increasingly concentrated with the executive.
The regressive nature of the constitution ultimately wins out though. It just took many decades of concentrated effort by conservatives to see it realized. They have the federal judiciary, and they can keep Congress out of Democrats' hands. The final piece is to constrain the executive should the president be a Democrat.
The end goal is that government will either be conservative or it will not function at all. The question is whether the American people will tolerate this state of affairs. And, if not, what they will do about it.
Again, this has been building for many decades. There's a reason no other country has a constitution that dates back to the 1700s, written only by wealthy White men, many of whom owned slaves. We're running out of ways to make this constitution work anymore. If this country can't be governed, at least not democratically - and that is very clearly one side's goal and has been for a long time - then what comes next? We are getting very close to finding out.
It seems to me that the whole saga of Chevron is utterly political. Wasn’t Chevron decided by a right-wing court in order to help right-wingers like Anne Gorsuch in the right-wing Reagan administration gut environmental regulation? And now that the right wing has lost influence in Democratic administrations, the same right-wing court, led by none other than Gorsuch Jr., wants to take that power back? Power for me, but not for thee.
There is a lot of wisdom in your thoughts. Meritocracy is a difficult system. It requires people to take their own life. Seriously, get away from the screens, and actually work themselves to the bone to get ahead.
Too many large corporations have seized government and taken over the agencies, then they create the rules. So- called “public-private partnerships“ have been devastating, resulting in the marriage of corporate power with state and federal power. There’s a really good argument for small government right there.
It’s an interesting how you say the government can somehow marshal “resources to give everyone opportunity.” For example, government has been marshaling resources to alleviate poverty in America for well over 60 years in a very concerted effort, but the poverty rate remains between 12 and 15% or somewhere thereabouts, no matter what they do. Alternatively, if people didn’t have the government to depend on, we might actually have to start depending on each other again.
Interesting conversation. On the point, I don’t think judges should be deferring to executive power, because it guts their judicial power to assess the legality of statutes and rules both.
You are wrong on that. Judges already can determine whether an agency exceeded its authority, abused its power or discretion, failed to follow the APA rules in enacting regulations, and can decide whether a rule is unconstitutional. The Chevron doctrine applies to courts being the ones deciding whether the expertise itself of the agency is wrong. It does NOT require complete deference to an agency's decision. If compelling evidence shows that the expertise IS wrong, it can decide that. "Deference" doesn't mean "enslavement."
Yeah, I'm not instinctively big government. There was a time in my life when I would have agreed with everything you said instead of just some of it. Then Trump came along and the light bulb went off and I said, 'A-ha, that's who these people really are,' and my priority ever since has been to fight that. Mostly, I'm against illiberalism. And ever since Trump I am keenly aware of the power of privilege, and how it can boost the most reprehensible among us. But left-wing solutions bring their own problems; I just don't find combatting that to be the priority right now given the other threats. I agree the executive branch has too much power, but I'm deeply skeptical of the motives of those who most want to take that power away. Until we find a way to break out of the current political paradigm I don't see much improving.
Wouldn't a reversal in this case let Judge Kacsmaryk decide for himself whether mifepristone is safe? If the Extremes don't use the standing issue to squelch him, that would seem to be the logical decision in that case. Pretty sure Congress didn't mention mifepristone in the enabling statute.
Also, remember places like the FDA also looks at whether new drugs are effective, not just safe. Can you imagine the snake-oil we'd be getting if pharma sued to get approval of, say, bleach pills to fight Covid? Even nice safe ones
Looks like turning the entire regulatory process into antitrust law, which will be great business for litigators, expert witnesses and the vast array of professional support for these services. Congress passes only high-level, somewhat vague laws and then the courts and the Court build up vast amounts of jurisprudence to ... um ... execute regulations about those laws. What could possibly go wrong?! Just think what this will do for the convention business! Just imagine the speakers' fees! /s
Dismantling of democracy from the top down with Alito, Thomas, Gotsuch, et Al. It’s too much. From the voter suppression attempts in state after state, to the House led by an election denier who has his son monitor his porn and his daughter sign a purity pledge, to Texas allowing a migrant mom and her two children to drown, and the former president who continues to thumb his nose at the law because he’s convinced he will be able to make it all go away when he wins legitimately or illegitimately in November, it’s just too much. Is it too late to right the ship at this point?
Assault on Chevron. As expected, another important Supreme Court precedent made it to the Republican hit list at today’s Supreme Court oral argument challenging courts’ long-standing deference to federal administrative agencies’ technical and scientific expertise. This will make it harder to protect the public in matters like the environment, food & drug safety, banking, health care & anti-trust enforcement. Chris’ summary helps tell you what you need to know at this point.
But, I got to go. Interesting to see what Chris writes about this coming week.
I’m not sure how many fewer laws we’re talking about, but it does raise the question “how many laws are enough?“
I am not sure I understand what you mean that people want democracy that works, because I’m not aware of a democracy since ancient Greece, but maybe you have a definition that I don’t understand.
America has a republic with a federalist system, (both horizontal and vertical federalism). We really do not have a democracy, and it is incorrect to call our current governmental structure a democracy. Have you read Montesquiou?
People want opportunity, for everybody, not just a select few. Meritocracy is not a natural system; the natural system is for the wealthy and powerful to pass on their wealth and power to their own descendants, and that describes most of human history and most of the world still today. Some countries and societies have made some progress past that; we call them advanced or highly developed nations. That takes government - a system of rules for fair play, resources to give everyone opportunity - and in the absence of that, you revert to a system in which everything is hereditary. Many of us don't want that. For others, it suits them very well. Try eliminating social security, medicare, and any type of publicly funded education or publicly funded infrastructure, and you'll see which side most people come down on. Try eliminating laws governing business practices, and watch how people react when the cheating and stealing starts. Eliminate environmental laws and safety laws and see how people respond to the destruction. These are the things I'm talking about.
We're not going to make it are we? 😔
Probably not. What's going to be important is how the American people respond to a failed state, or to a fascist state. One can hope for the best but we really don't know until it actually happens.
Many of them are not even aware of what's coming. Deregulation will not end well for anyone🙁 A glimpse at our future...
https://www.theguardian.com/environment/ng-interactive/2023/sep/12/unacceptable-how-raw-sewage-has-affected-rivers-in-england-and-wales-in-maps