US Air Force avoids PFAS water cleanup, citing Supreme Court's Chevron ruling(theguardian.com)
theguardian.com
US Air Force avoids PFAS water cleanup, citing Supreme Court's Chevron ruling
https://www.theguardian.com/us-news/article/2024/aug/12/air-force-epa-water-pfas-tucson
182 comments
The Supreme Court made the right decision.
Unlike the hyperbolic coverage in the press - the decision did not say that judges are now responsible for making regulation, rather than experts in regulatory agencies.
What they said is that now, if a statute is ambiguous, a regulatory agency makes a regulation that falls within that ambiguity, and someone files a lawsuit, the courts can play their standard, established role in resolving the ambiguity and figuring out the intent of Congress and determining whether the regulation is authorized by statute.
Previously, Chevron deference required the courts to defer to the agency's interpretation of the statute, regardless of how unreasonable that interpretation was.
This was abused by people who used it as a loophole to push through regulation which they knew would not be politically viable in Congress. Chevon deference allowed an end-run around democracy. And also led to uncertainty - because these regulations were politically controversial and not supported by law, just by executive branch fiat, they are prone to being revoked whenever the party holding the presidency changes.
If a topic is important enough, Congress can always resolve any of these issues by amending the relevant statute.
All of these controversies over Supreme Court decisions really come down to people who are advocating for positions and regulations which are unachievable through the normal political, legislative process in the US getting upset that the Supreme Court is not allowing them to enact these policies through backdoors and loopholes rather than the democratic process.
Unlike the hyperbolic coverage in the press - the decision did not say that judges are now responsible for making regulation, rather than experts in regulatory agencies.
What they said is that now, if a statute is ambiguous, a regulatory agency makes a regulation that falls within that ambiguity, and someone files a lawsuit, the courts can play their standard, established role in resolving the ambiguity and figuring out the intent of Congress and determining whether the regulation is authorized by statute.
Previously, Chevron deference required the courts to defer to the agency's interpretation of the statute, regardless of how unreasonable that interpretation was.
This was abused by people who used it as a loophole to push through regulation which they knew would not be politically viable in Congress. Chevon deference allowed an end-run around democracy. And also led to uncertainty - because these regulations were politically controversial and not supported by law, just by executive branch fiat, they are prone to being revoked whenever the party holding the presidency changes.
If a topic is important enough, Congress can always resolve any of these issues by amending the relevant statute.
All of these controversies over Supreme Court decisions really come down to people who are advocating for positions and regulations which are unachievable through the normal political, legislative process in the US getting upset that the Supreme Court is not allowing them to enact these policies through backdoors and loopholes rather than the democratic process.
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...
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...
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.
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.
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!
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.
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.
> 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?
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?
Exactly this. If the Cheof Executive and Commander in Cheof wanted the Air Force to clean up the PFAS, an Executive Order, or in other words, a command from the Commander, would be more than sufficient.
> 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.
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.
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.
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.
Presidential Immunity sandbagging.
> 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.
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.
> 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.
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.
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.
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.
I can give you the bill itself[0] and a few related pieces[1][2][3]
[0] https://www.appropriations.senate.gov/news/majority/murray-r...
[1]https://www.mediamatters.org/immigration/myths-and-facts-sur...
[2]https://www.pbs.org/newshour/politics/senate-republicans-blo...
[3]https://www.rollingstone.com/politics/politics-news/trump-bo...
[0] https://www.appropriations.senate.gov/news/majority/murray-r...
[1]https://www.mediamatters.org/immigration/myths-and-facts-sur...
[2]https://www.pbs.org/newshour/politics/senate-republicans-blo...
[3]https://www.rollingstone.com/politics/politics-news/trump-bo...
In your first link, the bill itself was introduced with:
"As Ukraine runs low on ammunition to fend off Putin’s brutal invasion, it is imperative we finally extend our support. We must also live up to our commitments to our allies around the globe and quickly get more aid to innocent civilians caught in conflict, including in Gaza, where the humanitarian crisis is especially dire. I never believed we should link policy demands to emergency aid for our allies, but Republicans insisted—so Democrats negotiated in good faith over many weeks and now there is a bipartisan deal on border policy legislation. Ukraine’s fate and so much more hangs in the balance—it’s time for Congress to act."
I don't trust that this can be represented as a border bill. The person introducing the bill seems to think it is a Ukraine (and Gaza) bill with compromises included. 80% of the money mentioned in the dot point list is going to non-border things. This tells us more about the Republican stance on foreign interventions than their feelings on borders.
Also, the effort being put into calling this a "bipartisan" bill (in everything I'm reading, it seems) is highly suspect. They can't call a bill bipartisan if one side is voting against it - it clearly isn't bipartisan.
"As Ukraine runs low on ammunition to fend off Putin’s brutal invasion, it is imperative we finally extend our support. We must also live up to our commitments to our allies around the globe and quickly get more aid to innocent civilians caught in conflict, including in Gaza, where the humanitarian crisis is especially dire. I never believed we should link policy demands to emergency aid for our allies, but Republicans insisted—so Democrats negotiated in good faith over many weeks and now there is a bipartisan deal on border policy legislation. Ukraine’s fate and so much more hangs in the balance—it’s time for Congress to act."
I don't trust that this can be represented as a border bill. The person introducing the bill seems to think it is a Ukraine (and Gaza) bill with compromises included. 80% of the money mentioned in the dot point list is going to non-border things. This tells us more about the Republican stance on foreign interventions than their feelings on borders.
Also, the effort being put into calling this a "bipartisan" bill (in everything I'm reading, it seems) is highly suspect. They can't call a bill bipartisan if one side is voting against it - it clearly isn't bipartisan.
The bill was co-sponsored and put together by Republican and Democrat senators which is why they call it bipartisan. I agree that I would prefer the bill didn't have any riders and was just a border bill but none of the Republican complaints have to do with the aid to Ukraine so I don't think it is relevant here.
> ... but none of the Republican complaints have to do with the aid to Ukraine ...
I'm repeating myself here I suppose, but do you have any references for what the Republicans are saying in their own words? Because the links were doing line-out-of-context quotes and I don't have confidence those are representative.
I don't think there is strong evidence here that the Republicans were shooting things down border legislation to avoid giving Biden brownie points. The situation appears to be the the Democrats were trying to send ~$80 billion split among Ukraine/Israel/Taiwan and their negotiations to get that through Congress failed. In that process it doesn't look like the Dems were even trying to deal with the border except as a compromise.
Occam's razor suggests that the bill wasn't going to get the outcome on the ground that the Republicans wanted. Otherwise the story is they negotiated to add something unrelated in only to vote it away, which seems a bit counterproductive even as political theatre (ie, why? it only gives the Dems something to talk about). They don't gain anything by voting down something that they nominally wanted and asked to be included in a totally unrelated bill. If anything the process would suggest they were being disingenuous on being willing to fund Ukraine rather than anything border related.
I'm repeating myself here I suppose, but do you have any references for what the Republicans are saying in their own words? Because the links were doing line-out-of-context quotes and I don't have confidence those are representative.
I don't think there is strong evidence here that the Republicans were shooting things down border legislation to avoid giving Biden brownie points. The situation appears to be the the Democrats were trying to send ~$80 billion split among Ukraine/Israel/Taiwan and their negotiations to get that through Congress failed. In that process it doesn't look like the Dems were even trying to deal with the border except as a compromise.
Occam's razor suggests that the bill wasn't going to get the outcome on the ground that the Republicans wanted. Otherwise the story is they negotiated to add something unrelated in only to vote it away, which seems a bit counterproductive even as political theatre (ie, why? it only gives the Dems something to talk about). They don't gain anything by voting down something that they nominally wanted and asked to be included in a totally unrelated bill. If anything the process would suggest they were being disingenuous on being willing to fund Ukraine rather than anything border related.
You say the quotes are out of context so what exactly do you want to see?
> Otherwise the story is they negotiated to add something unrelated in only to vote it away, which seems a bit counterproductive even as political theatre (ie, why? it only gives the Dems something to talk about)
This is what happened though.
> Otherwise the story is they negotiated to add something unrelated in only to vote it away, which seems a bit counterproductive even as political theatre (ie, why? it only gives the Dems something to talk about)
This is what happened though.
Ideally I was hoping to see the congressional records of what they said in debate before they voted the bill down (I looked myself but didn't find it), but any longform text version of Republicans speaking. Even video. Although frankly it probably isn't worth much more effort, this is clearly not a "border bill". It is an appropriations bill for sending money to various military theatres a long way from US borders [0]. They've stapled some border-related appropriations to it and added Sec 3301 to declare a border emergency; but that doesn't change the basic nature of this as defence spending. The Republicans voting down defence spending doesn't tell me much about their views about the border.
> This is what happened though.
For the sake of argument, ok. But that isn't consistent with the idea that they torpedoed a recent border bill because they didn't want to give Biden brownie points. The Democrats don't seem to think that this gives their team brownie points - they didn't even want it included in this amendment. The person introducing it literally says that!
So whatever the Republicans are doing it isn't trying to deny Biden brownie points, because that would rely on the Republicans offering brownie points to deny him - which makes no sense (outside wild incompetence, and even then that doesn't fit well with the theory they are doing this just to deny a good look - it fits with the idea they are incompetent and did something silly). It is much more likely that either the negotiations over the Ukraine spending were in good faith but failed (which happens all the time) or the Republicans were bluffing in negotiations and didn't think the border provisions would be included then had to vote the amendment down when their bluff was called (less common, but that would just suggest they value blocking Ukraine spending at a higher priority than the border provisions the Democrats offered). Neither of those explanations (both of which are routine politics) even involve the Dems wanting the border provisions or thinking they are strategically helpful. If either of those things were true they should have introduced an actual border bill in a non-appropriations setting.
[0] I suppose technically it is a pure border bill in the sense that we're talking about Ukraine's/Taiwan's/Israel's/the States' borders but I don't think you meant that.
> This is what happened though.
For the sake of argument, ok. But that isn't consistent with the idea that they torpedoed a recent border bill because they didn't want to give Biden brownie points. The Democrats don't seem to think that this gives their team brownie points - they didn't even want it included in this amendment. The person introducing it literally says that!
So whatever the Republicans are doing it isn't trying to deny Biden brownie points, because that would rely on the Republicans offering brownie points to deny him - which makes no sense (outside wild incompetence, and even then that doesn't fit well with the theory they are doing this just to deny a good look - it fits with the idea they are incompetent and did something silly). It is much more likely that either the negotiations over the Ukraine spending were in good faith but failed (which happens all the time) or the Republicans were bluffing in negotiations and didn't think the border provisions would be included then had to vote the amendment down when their bluff was called (less common, but that would just suggest they value blocking Ukraine spending at a higher priority than the border provisions the Democrats offered). Neither of those explanations (both of which are routine politics) even involve the Dems wanting the border provisions or thinking they are strategically helpful. If either of those things were true they should have introduced an actual border bill in a non-appropriations setting.
[0] I suppose technically it is a pure border bill in the sense that we're talking about Ukraine's/Taiwan's/Israel's/the States' borders but I don't think you meant that.
You've got a better example in your back pocket if you ever need to use it: Obamacare was previously Romneycare which was originally a Heritage Foundation spec bill. Republicans went on a decade-long campaign to dismantle a system that they wrote because a Democratic president implemented it.
They didn't actually dismantle it though, and it seems unlikely that the bill that actually passed was an unmodified publication of the Heritage Foundation.
This seems more like the Motte and Bailey disease in an election cycle. Both parties pass a bill that they both like 75% of, but then they need something to campaign on. So one party says "we're going to repeal the dastardly bill" and cites the parts of it they don't like. The other party says "they say they're going to repeal the vital bill, we have to stop them" and cites the parts of it that everybody likes. Then if the complaining party gets in they keep the parts everybody likes and maybe change some of the other parts.
Never confuse what politicians say they're going to do with what they're actually going to do.
This seems more like the Motte and Bailey disease in an election cycle. Both parties pass a bill that they both like 75% of, but then they need something to campaign on. So one party says "we're going to repeal the dastardly bill" and cites the parts of it they don't like. The other party says "they say they're going to repeal the vital bill, we have to stop them" and cites the parts of it that everybody likes. Then if the complaining party gets in they keep the parts everybody likes and maybe change some of the other parts.
Never confuse what politicians say they're going to do with what they're actually going to do.
>They didn't actually dismantle it though
They weakened it considerably, and also spent a lot of time and money that could have been spent on other problems trying to repeal it altogether.
>it seems unlikely that the bill that actually passed was an unmodified publication of the Heritage Foundation.
I feel like it would be rather trivial to determine if the initially-proposed ACA and the HF version were substantially different. You don't have to "seems unlikely" it; go and check.
They weakened it considerably, and also spent a lot of time and money that could have been spent on other problems trying to repeal it altogether.
>it seems unlikely that the bill that actually passed was an unmodified publication of the Heritage Foundation.
I feel like it would be rather trivial to determine if the initially-proposed ACA and the HF version were substantially different. You don't have to "seems unlikely" it; go and check.
So unelected judges should be required to rely on the testimony of unelected bureaucrats?
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...
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...
Judges are still allowed to defer to experts. The question is how often they will when it's up to them to decide.
> Judges are still allowed to defer to experts
Then why is congress be denied the same latitude (via agencies)?
Then why is congress be denied the same latitude (via agencies)?
>> Judges are still allowed to defer to experts
> Then why is congress be denied the same latitude (via agencies)?
Come on, that's obviously false. Even in an alternative world where agency rule-making was totally abolished, and everything has to be enacted directly through legislation, Congress could still defer to experts to draft that legislation.
Also the courts themselves are supposed to be the experts at interpreting legislation. In our system of government, it's their job to have the final say about that.
Let me put it another way: do you think it would be a good idea for judges to be required to defer to prosecutors (also in the executive branch) on the interpretation of criminal law? (e.g. "Prosecutor: Your honor, the defendant is guilty because I say the law says he is. Judge: OK, your call. How long should we lock him up for?")
> Then why is congress be denied the same latitude (via agencies)?
Come on, that's obviously false. Even in an alternative world where agency rule-making was totally abolished, and everything has to be enacted directly through legislation, Congress could still defer to experts to draft that legislation.
Also the courts themselves are supposed to be the experts at interpreting legislation. In our system of government, it's their job to have the final say about that.
Let me put it another way: do you think it would be a good idea for judges to be required to defer to prosecutors (also in the executive branch) on the interpretation of criminal law? (e.g. "Prosecutor: Your honor, the defendant is guilty because I say the law says he is. Judge: OK, your call. How long should we lock him up for?")
> Even in an alternative world where agency rule-making was totally abolished, and everything has to be enacted directly through legislation, Congress could still defer to experts to draft that legislation.
What are the odds that the experts a biased towards special interests? How many laws do you suppose congress can write in one session? How many laws will now need to be written to match the average number rules developed by all agencies per year over the past 40 years since Chevron? In practice, this will result in gigantic acts that members of congress can't read before voting, amd increase the likelihood of loopholes. Which is intentional, IMO.
Frankly, when the judges and politicians who believe there are too many rules/too much government and decry government dysfunction suggest the answer is more rules or better laws (completely disregarding self-professed dysfunction), I won't take their words at face value, the sudden confidence in government competence and efficiency is likely tactical in pursuit of "dismantling the administrative state" (an actual stated goal).
What are the odds that the experts a biased towards special interests? How many laws do you suppose congress can write in one session? How many laws will now need to be written to match the average number rules developed by all agencies per year over the past 40 years since Chevron? In practice, this will result in gigantic acts that members of congress can't read before voting, amd increase the likelihood of loopholes. Which is intentional, IMO.
Frankly, when the judges and politicians who believe there are too many rules/too much government and decry government dysfunction suggest the answer is more rules or better laws (completely disregarding self-professed dysfunction), I won't take their words at face value, the sudden confidence in government competence and efficiency is likely tactical in pursuit of "dismantling the administrative state" (an actual stated goal).
And by confusing, you mean they used the term nitrous oxide instead of nitrogen oxide. So they revised the ruling to correct the word the phrase.
Did the word choice have any bearing on the ruling? No, it didn't?
So we are clutching at pearls.
Did the word choice have any bearing on the ruling? No, it didn't?
So we are clutching at pearls.
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.
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.
[deleted]
> 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
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
Of course there is corruption but if you think that means all (or most) judges are corrupt, you're confused.
Is this a joke? The US justice system is now extremely partisan and conservative judges rule according to the interests of the Republican party.
Just because you don't like their rulings doesn't make them wrong, legally speaking. I recommend reading the controversial decisions. What they've said is very different from what the memes about them claim they've said.
Here's a very simple rule of thumb: If the judges' opinions happen to divide along party lines, they are by definition partisan. Now go look at the majority vs minority opinions from the last half a decade or so.
"Here's a very simple rule of thumb: If the judges' opinions happen to divide along party lines, they are by definition partisan."
Very simple and very wrong.
Yes, partisan politicians appoint judges with legal principles that they favor but that doesn't make the judges themselves partisan.
Trump's SCOTUS appointees have all decided cases in ways that were distinctly not partisan, based on their legal principles and not any kind of party loyalty.
Partisan people (like yourself, presumably) don't even notice these decisions or try to downplay them. This is hyper partisanship itself and it's toxic to a democracy.
Very simple and very wrong.
Yes, partisan politicians appoint judges with legal principles that they favor but that doesn't make the judges themselves partisan.
Trump's SCOTUS appointees have all decided cases in ways that were distinctly not partisan, based on their legal principles and not any kind of party loyalty.
Partisan people (like yourself, presumably) don't even notice these decisions or try to downplay them. This is hyper partisanship itself and it's toxic to a democracy.
The justifications don't matter; if the opinions are divided on party lines it's inherently partisan. You seem to be convinced that "one side is right", I'm saying if you can look at the rulings and see the opinions coincide with party boundaries clearly politics are involved.
In no way did I imply that "one side is right" because I don't believe either side has a monopoly on being correct.
Because laws often have room for interpretation, conservative justices tend to decide cases in ways that the conservative Republican Party agrees with. And liberal justices tend to decide cases in ways that the liberal Democratic Party agrees with.
But both conservative and liberal justices very often decide cases in ways that go against their own personal views. The Supreme Court judges that Trump appointed have done this multiple times.
Because laws often have room for interpretation, conservative justices tend to decide cases in ways that the conservative Republican Party agrees with. And liberal justices tend to decide cases in ways that the liberal Democratic Party agrees with.
But both conservative and liberal justices very often decide cases in ways that go against their own personal views. The Supreme Court judges that Trump appointed have done this multiple times.
Or “experts”, if you want to offer some sense of objectivity.
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
Limited debate is NOT democracy A motion for cloture is NOT democracy An appointed judge deciding policy is NOT democracy
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?
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?
So use the existing democratic process. Use your persuasion. Use your words.
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?
Do you think that's how government works in the real world?
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.
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.
> 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-wa...
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-wa...
> The reason being that many of our institutions, and especially our courts, are nigh-hopelessly corrupt.
The reason being that Flint's water crisis was caused by the government not adding corrosion inhibitors to the water when they switched to another water source, which stripped the lining from the lead pipes, causing them to permanently leach lead into the water. They basically ruined the city's entire water grid all at once and caused hundreds of millions in damage because all of the pipes had to be inspected and replaced. Which takes a long time to do.
More to the point, it was the executive branch that did this! You can hardly blame the courts for the actions of the Governor and his underlings.
The reason being that Flint's water crisis was caused by the government not adding corrosion inhibitors to the water when they switched to another water source, which stripped the lining from the lead pipes, causing them to permanently leach lead into the water. They basically ruined the city's entire water grid all at once and caused hundreds of millions in damage because all of the pipes had to be inspected and replaced. Which takes a long time to do.
More to the point, it was the executive branch that did this! You can hardly blame the courts for the actions of the Governor and his underlings.
The mistakes that lead to the corrosion were caused by a careless political wrangling overseen by a series of appointed managers and boards, essentially judges in all but name. Even if you don't see it that way, the point is that the protests of concerned citizens did little to stay the hands of the people empowered to make stupid mistakes quickly. Further, they dragged their heels on pipe-replacement, maintaining for years that it would be unnecessary. The actual, physical replacement could have been done much faster.
Fixing these problems in a timely manner would require more fundamental changes to how they're handled, not simply better organization and awareness within the current paradigm.
Fixing these problems in a timely manner would require more fundamental changes to how they're handled, not simply better organization and awareness within the current paradigm.
But why didn't anyone simply go to Congress and use their persuasion and words?
Congress did actually approve a buttload of money, not long after it happened. It just takes a long time to dig up that many pipes.
> This is an actual joke.
No, it’s an actual example of a normal citizen getting a vote on the floor of a bill they wrote.
The Flint water crisis is a crisis in name only. Blood lead levels were lower during the crisis than years before it happened.
So color me shocked it’s not “fully resolved”.
“ The study, which appears in the Journal of Pediatrics, found a decrease in Flint childhood blood lead levels, from 2.33 micrograms per deciliter in 2006 to 1.15 micrograms per deciliter in 2016 — a historic low for the city.”
https://www.michiganmedicine.org/health-lab/study-examines-b...
No, it’s an actual example of a normal citizen getting a vote on the floor of a bill they wrote.
The Flint water crisis is a crisis in name only. Blood lead levels were lower during the crisis than years before it happened.
So color me shocked it’s not “fully resolved”.
“ The study, which appears in the Journal of Pediatrics, found a decrease in Flint childhood blood lead levels, from 2.33 micrograms per deciliter in 2006 to 1.15 micrograms per deciliter in 2016 — a historic low for the city.”
https://www.michiganmedicine.org/health-lab/study-examines-b...
Yes because the straw scenario you imagine, in your attempt to make a point using junior college sarcasm, is literally the only way to get legislation passed. Good grief.
> 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.
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.
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.
> 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.
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.
Dismantle first past the post system everywhere. There, super simple and effective.
Now you just have to get thoroughly captured legislative bodies to sign on to your reforms...
> Unlike the hyperbolic coverage in the press - the decision did not say that judges are now responsible for making regulation, rather than experts in regulatory agencies.
They said EXACTLY that. There is absolutely NOTHING redeeming in the SCOTUS decision.
Prior to that, courts were required to defer to the agencies for the matter of facts. E.g. if PFAS is a pollutant. Now everyone can just say: "I don't belive PFAS is a pollutant, so there's no need to clean it up". And this will have to be argued all the way up to the SCOTUS.
They said EXACTLY that. There is absolutely NOTHING redeeming in the SCOTUS decision.
Prior to that, courts were required to defer to the agencies for the matter of facts. E.g. if PFAS is a pollutant. Now everyone can just say: "I don't belive PFAS is a pollutant, so there's no need to clean it up". And this will have to be argued all the way up to the SCOTUS.
You can't just say "I don't believe PFAS is a pollutant", you have to convince a judge of that, and the EPA gets to make the opposite case. Then the judge hears everyone's arguments and makes a decision, because that's what judges do.
> You can't just say "I don't believe PFAS is a pollutant", you have to convince a judge of that
It's not like the Fifth Circuit judges routinely ignore and misquote plain facts, yeah? The next issue is that you'll be pitting boring government bureaucrats against highly paid legal teams that can outdazzle pretty much anyone.
But even putting all of this aside, the rulemaking process itself is not fast by design because it gives all the interested parties plenty of time to interact with the agencies. A typical rule takes about 3 years to finalize. Then you can delay it for 4-5 years by simply going through the court process as slowly as you can.
And if you get a split judgement by going into the la-la land of East Texas judges and in parallel by suing in another location, you can drag it out even more by waiting on the SCOTUS!
So you're looking at a _decade_ between a rule and its implementation.
But wait, there's even more! You can then question the enforcement actions in a separate lawsuit! You won't be able to drag it out as much, but another 2-3 years is a possibility.
Some libertardians suggested: "Hey! We now can sue government agencies for allowing Teh Evul Glyphosate, and GMOs!". Nope, you can't. You don't have standing for that. It's a strictly pro-polluters ruling.
It's not like the Fifth Circuit judges routinely ignore and misquote plain facts, yeah? The next issue is that you'll be pitting boring government bureaucrats against highly paid legal teams that can outdazzle pretty much anyone.
But even putting all of this aside, the rulemaking process itself is not fast by design because it gives all the interested parties plenty of time to interact with the agencies. A typical rule takes about 3 years to finalize. Then you can delay it for 4-5 years by simply going through the court process as slowly as you can.
And if you get a split judgement by going into the la-la land of East Texas judges and in parallel by suing in another location, you can drag it out even more by waiting on the SCOTUS!
So you're looking at a _decade_ between a rule and its implementation.
But wait, there's even more! You can then question the enforcement actions in a separate lawsuit! You won't be able to drag it out as much, but another 2-3 years is a possibility.
Some libertardians suggested: "Hey! We now can sue government agencies for allowing Teh Evul Glyphosate, and GMOs!". Nope, you can't. You don't have standing for that. It's a strictly pro-polluters ruling.
> It's not like the Fifth Circuit judges routinely ignore and misquote plain facts, yeah?
As opposed to elected officials, who... wait.
> The next issue is that you'll be pitting boring government bureaucrats against highly paid legal teams that can outdazzle pretty much anyone.
The US government is the largest bureaucracy in the world with an annual budget larger than that of any private corporation, employs more lawyers than anyone else, and those lawyers' average compensation breaks six figures.
> A typical rule takes about 3 years to finalize. Then you can delay it for 4-5 years by simply going through the court process as slowly as you can.
About the first thing a court is going to do is rule on an injunction, and when the company loses on that, drawing it out isn't going to help them because they can't proceed unless and until they win in court.
> And if you get a split judgement by going into the la-la land of East Texas judges and in parallel by suing in another location, you can drag it out even more by waiting on the SCOTUS!
This doesn't really have anything to do with a circuit split, except insofar as the SCOTUS is more likely to take the case if there is one.
> "Hey! We now can sue government agencies for allowing Teh Evul Glyphosate, and GMOs!". Nope, you can't. You don't have standing for that.
What happens if you sue the polluters?
As opposed to elected officials, who... wait.
> The next issue is that you'll be pitting boring government bureaucrats against highly paid legal teams that can outdazzle pretty much anyone.
The US government is the largest bureaucracy in the world with an annual budget larger than that of any private corporation, employs more lawyers than anyone else, and those lawyers' average compensation breaks six figures.
> A typical rule takes about 3 years to finalize. Then you can delay it for 4-5 years by simply going through the court process as slowly as you can.
About the first thing a court is going to do is rule on an injunction, and when the company loses on that, drawing it out isn't going to help them because they can't proceed unless and until they win in court.
> And if you get a split judgement by going into the la-la land of East Texas judges and in parallel by suing in another location, you can drag it out even more by waiting on the SCOTUS!
This doesn't really have anything to do with a circuit split, except insofar as the SCOTUS is more likely to take the case if there is one.
> "Hey! We now can sue government agencies for allowing Teh Evul Glyphosate, and GMOs!". Nope, you can't. You don't have standing for that.
What happens if you sue the polluters?
> The US government is the largest bureaucracy in the world
To give you some perspective, the EPA is just about 15000 people. Including inspectors, and other non-policy personnel.
I've heard a while ago that less than 1000 people work directly on writing the policy.
To give you some perspective, the EPA is just about 15000 people. Including inspectors, and other non-policy personnel.
I've heard a while ago that less than 1000 people work directly on writing the policy.
> As opposed to elected officials, who... wait.
Most of the regulatory agencies are _not_ made of the elected officials. It's career bureaucrats, who can't be easily fired.
Positions appointed by elected officials are called "political", and they have limited power.
> The US government is the largest bureaucracy in the world with an annual budget larger than that of any private corporation, employs more lawyers than anyone else, and those lawyers' average compensation breaks six figures.
LOL. I see you have never interacted with the actual agencies. They are on about as shoe-string budget as possible. Most lawyers go to work for the Fed if they want loan forgiveness and/or want a steady job with guaranteed benefits.
> About the first thing a court is going to do is rule on an injunction
They are overwhelmingly granted even now, when companies can only question the _procedure_ and not the findings of facts. A company just needs to show that the regulation will cause them great harm if not stayed pending the outcome.
> This doesn't really have anything to do with a circuit split, except insofar as the SCOTUS is more likely to take the case if there is one.
If a company is operating in multiple circuits, it's pretty common to ask for injunction pending on the outcome of the trial in other circuits and the eventual appeal.
> What happens if you sue the polluters?
Usually nothing. In general, you simply don't have standing. You have to show a real material injury, and something like "50% greater risk of bladder cancer" is _not_ it.
Most of the regulatory agencies are _not_ made of the elected officials. It's career bureaucrats, who can't be easily fired.
Positions appointed by elected officials are called "political", and they have limited power.
> The US government is the largest bureaucracy in the world with an annual budget larger than that of any private corporation, employs more lawyers than anyone else, and those lawyers' average compensation breaks six figures.
LOL. I see you have never interacted with the actual agencies. They are on about as shoe-string budget as possible. Most lawyers go to work for the Fed if they want loan forgiveness and/or want a steady job with guaranteed benefits.
> About the first thing a court is going to do is rule on an injunction
They are overwhelmingly granted even now, when companies can only question the _procedure_ and not the findings of facts. A company just needs to show that the regulation will cause them great harm if not stayed pending the outcome.
> This doesn't really have anything to do with a circuit split, except insofar as the SCOTUS is more likely to take the case if there is one.
If a company is operating in multiple circuits, it's pretty common to ask for injunction pending on the outcome of the trial in other circuits and the eventual appeal.
> What happens if you sue the polluters?
Usually nothing. In general, you simply don't have standing. You have to show a real material injury, and something like "50% greater risk of bladder cancer" is _not_ it.
By the time it gets to the SCOTUS, many people will die. Generations of people impacted in polluted areas.
It’s a shit situation.
It’s a shit situation.
>Chevon deference allowed an end-run around democracy.
I would consider officials appointed by the regularly elected position of President as more democratically controlled than federal judges. If people dislike how the President is handling EPA rules, they can vote for a different president next time. Or voice their concerns to their elected Congresspeople, who could amend the laws. If SCOTUS rules in a way I strongly disagree with, I'm SOL. And, because of of stare decisis, that ruling is likely to stand for a long time.
>And also led to uncertainty - because these regulations were politically controversial and not supported by law, just by executive branch fiat, they are prone to being revoked whenever the party holding the presidency changes.
Firstly, Chevron Deference required rules to be reasonable interpretations of the law. So it wasn't total fiat. Also, there are other laws that prevent capricious changes. The new rule must be proposed, published, and allowed time for public comment.
Also, Chevron allowed courts to rule on ambiguous matters of law (e.g., how two laws interacted). Because judges are experts in federal laws. But for other questions, such as the dissent's citation of a case over whether a Pacific Northwest colony of squirrels qualified as a separate population from other parts of the country, there's no way I'd trust a judge to understand a crash course on biology, genetics, and ecology delivered by opposing sides in the span of a court case. Now imagine they do this all the time for different subjects. I doubt many judges look forward to these cases.
I would consider officials appointed by the regularly elected position of President as more democratically controlled than federal judges. If people dislike how the President is handling EPA rules, they can vote for a different president next time. Or voice their concerns to their elected Congresspeople, who could amend the laws. If SCOTUS rules in a way I strongly disagree with, I'm SOL. And, because of of stare decisis, that ruling is likely to stand for a long time.
>And also led to uncertainty - because these regulations were politically controversial and not supported by law, just by executive branch fiat, they are prone to being revoked whenever the party holding the presidency changes.
Firstly, Chevron Deference required rules to be reasonable interpretations of the law. So it wasn't total fiat. Also, there are other laws that prevent capricious changes. The new rule must be proposed, published, and allowed time for public comment.
Also, Chevron allowed courts to rule on ambiguous matters of law (e.g., how two laws interacted). Because judges are experts in federal laws. But for other questions, such as the dissent's citation of a case over whether a Pacific Northwest colony of squirrels qualified as a separate population from other parts of the country, there's no way I'd trust a judge to understand a crash course on biology, genetics, and ecology delivered by opposing sides in the span of a court case. Now imagine they do this all the time for different subjects. I doubt many judges look forward to these cases.
> I would consider officials appointed by the regularly elected position of President as more democratically controlled than federal judges.
the "more democratically controlled" members of government are congress, who make the laws, and can make more laws. That's their job – not anyone else's.
the "more democratically controlled" members of government are congress, who make the laws, and can make more laws. That's their job – not anyone else's.
But in reality, laws are never perfect and all-encompassing. There is nothing wrong with Congress passing a law that says "water must be clean enough to drink", and then leaving it to a pool of experts to define "clean enough to drink" as "free from chemical X, Y, Z..." and to intervene when new chemicals show up.
Expecting the already-clogged lawmaking process to be ready to amend a law every time a new compound ends up in water, is extremely unrealistic.
Expecting the already-clogged lawmaking process to be ready to amend a law every time a new compound ends up in water, is extremely unrealistic.
Congress cannot delegate the lawmaking obligation to unelected agencies.
That's... exactly what this ruling correctly determined; that the power must remain with the people and their representatives.
That's... exactly what this ruling correctly determined; that the power must remain with the people and their representatives.
As French, our dual-branch judicial system for a long time seemed very weird to me — I didn’t really see the point of it. I must thank the US to provide a clear example why it is in fact so useful.
In France, the law would be typically written as "The water must be safe to drink. The list of banned chemicals and safety thresholds is to be set by the Supreme Court of the Administrative Branch" (Conseil d’Etat). That way you still do have a judicial oversight of agencies, but with a judicial branch which has more adapted procedures to those issues (for example you don’t have to wait for a case to go all the way up to the Supreme Court to adjudicate — it is literally part of the job of the Supreme Court of the Administrative Branch to be proactive in those matters).
In France, the law would be typically written as "The water must be safe to drink. The list of banned chemicals and safety thresholds is to be set by the Supreme Court of the Administrative Branch" (Conseil d’Etat). That way you still do have a judicial oversight of agencies, but with a judicial branch which has more adapted procedures to those issues (for example you don’t have to wait for a case to go all the way up to the Supreme Court to adjudicate — it is literally part of the job of the Supreme Court of the Administrative Branch to be proactive in those matters).
Then enjoy government efficiency falling off a cliff - and the polluted water that will result from it.
Institutional zealotry is rarely a good thing.
Institutional zealotry is rarely a good thing.
Yes. That is their job, and they've done it.
If they are not happy with how an agency is acting - they have the clear and obvious ability to amend the laws that govern that agency.
Their failure to do so is not arbitrary - it is agreement and faith in the agency they have empowered to act on their behalf.
The courts are now compelling action. Why?
If I am satisfied with how my employees are behaving, I don't chastise them or correct them over minor ambiguities - I leave them alone to continue behaving in a manner I approve of. If I am unsatisfied - I take action to correct the reason I am unsatisfied.
The courts seem to have turned this common sense on its head.
If they are not happy with how an agency is acting - they have the clear and obvious ability to amend the laws that govern that agency.
Their failure to do so is not arbitrary - it is agreement and faith in the agency they have empowered to act on their behalf.
The courts are now compelling action. Why?
If I am satisfied with how my employees are behaving, I don't chastise them or correct them over minor ambiguities - I leave them alone to continue behaving in a manner I approve of. If I am unsatisfied - I take action to correct the reason I am unsatisfied.
The courts seem to have turned this common sense on its head.
> If they are not happy with how an agency is acting - they have the clear and obvious ability to amend the laws that govern that agency.
Changing the law requires a majority in the House and Senate and either a veto-proof majority or the signature of the President. It's not supposed to require only the President.
But now you have a problem. What happens if the law that actually passed is ambiguous? Who resolves the ambiguity?
The courts get the first pass. Then if there is consensus they got it wrong, Congress can change the law. If there isn't consensus they got it wrong then the elected branches are deadlocked and the courts act as the tiebreaker until they reach consensus.
Making the President the tiebreaker is giving way too much power to one person.
Changing the law requires a majority in the House and Senate and either a veto-proof majority or the signature of the President. It's not supposed to require only the President.
But now you have a problem. What happens if the law that actually passed is ambiguous? Who resolves the ambiguity?
The courts get the first pass. Then if there is consensus they got it wrong, Congress can change the law. If there isn't consensus they got it wrong then the elected branches are deadlocked and the courts act as the tiebreaker until they reach consensus.
Making the President the tiebreaker is giving way too much power to one person.
Because the courts merely interpret and reinforce the laws – as written by the people's representatives, not by an unelected official.
The lawmaking body of the land is congress, and they are comprised of a fair representation of the people. That is by design.
The lawmaking body of the land is congress, and they are comprised of a fair representation of the people. That is by design.
Does Congress “make” laws or does it just push through laws written by lobbyists?
Chevron never tied Congress' hands. They always had the ability to amend the law if the Executive branch did something Congress didn't want.
Let's be clear: a lot of these rules are policy decisions. Congress and the Executive are supposed to hash out policy, seeing as they're the only branches controlled by elections. The Judiciary shouldn't have a say. But, without Chevron Deference, policy can be decided by a private party and a judge. That's a terrible way to guide a country.
Let's be clear: a lot of these rules are policy decisions. Congress and the Executive are supposed to hash out policy, seeing as they're the only branches controlled by elections. The Judiciary shouldn't have a say. But, without Chevron Deference, policy can be decided by a private party and a judge. That's a terrible way to guide a country.
The President doesn't have much control over these agencies. Congress creates them, provides funds, and consents to the executives who run it. The President has limited power to dismiss, and if they do find cause to fire they still need the consent of Congress yet again.
If the law is ambiguous and the executive interprets it in a way that is outside of Congress' intent, surely Congress could also clarify that law. One could just as (or more) easily assume that it is not the judiciary's role to tell the executive what Congress wanted, considering that Congress is right there to do it with their own voice. The judiciary would come in if Congress thought the executive was doing something outside of their intent.
What this position is really saying is that if Congress leaves something underdetermined the executive must defer to the judiciary in order to understand their own rulemaking.
I agree with you that the real problem here is a schlerotic political system, but in that context SCOTUS is actually making it worse by inserting itself unnecessarily into the process.
What this position is really saying is that if Congress leaves something underdetermined the executive must defer to the judiciary in order to understand their own rulemaking.
I agree with you that the real problem here is a schlerotic political system, but in that context SCOTUS is actually making it worse by inserting itself unnecessarily into the process.
The executive isn't supposed to be making rules at all. Congress makes the rules, courts interpret them. The executive branch is the prosecutor's office; they don't get to decide what things are crimes.
In the army I knew a guy who did something so dumb a new regulation was added to the army regulations around UCMJ or what could be prosecuted. I have long forgotten the number unfortunately. But the point is that no statute or regulation can ever specify every eventuality and it’s folly to think it can be done.
Edit the case was a soldier (the guy) had orders to attend a school, went awol enroute. He was not reported awol, the destination nor origin commands knew what happened. He got a guilty conscience and came back to originating command. The reg was about who was required to report the awol. Since the awol was never reported he couldn’t be prosecuted.
Edit the case was a soldier (the guy) had orders to attend a school, went awol enroute. He was not reported awol, the destination nor origin commands knew what happened. He got a guilty conscience and came back to originating command. The reg was about who was required to report the awol. Since the awol was never reported he couldn’t be prosecuted.
As the comment you’re replying to explains, statutes don’t have to define every eventuality. As before, ambiguities are resolved as they come up. Now it’s just the courts who decide them instead of agency officials.
By the courts. Since we can never cover every eventuality, that effectively makes courts de factor regulators.
Notably, the group of politicians who’s appointed the members of the court who voted this way stand the most to gain from it. I think that fact can’t be ignored.
Notably, the group of politicians who’s appointed the members of the court who voted this way stand the most to gain from it. I think that fact can’t be ignored.
> Unlike the hyperbolic coverage in the press - the decision did not say that judges are now responsible for making regulation, rather than experts in regulatory agencies.
No, they literally said that. Multiple times in the ruling [1] [2]. The point is that the court can now take any interpretation of the laws as reason to say the agency has no right to do what they're doing, instead of first checking if the agency and its interpretation is valid and relying on experts.
[1] "Today, the Court places a tombstone on Chevron no one can miss. In doing so, the Court returns judges to interpretive rules that have guided federal courts since the Nation’s founding"
[2] "Under the APA, it thus “remains the responsibility of the court to decide whether the law means what the agency says.”
No, they literally said that. Multiple times in the ruling [1] [2]. The point is that the court can now take any interpretation of the laws as reason to say the agency has no right to do what they're doing, instead of first checking if the agency and its interpretation is valid and relying on experts.
[1] "Today, the Court places a tombstone on Chevron no one can miss. In doing so, the Court returns judges to interpretive rules that have guided federal courts since the Nation’s founding"
[2] "Under the APA, it thus “remains the responsibility of the court to decide whether the law means what the agency says.”
> Previously, Chevron deference required the courts to defer to the agency's interpretation of the statute, regardless of how unreasonable that interpretation was.
No it didn't. It only required deference to reasonable interpretations by the agency.
No it didn't. It only required deference to reasonable interpretations by the agency.
People see congress as being so broken that anything that asks congress to act is seen as a bad thing, is the problem.
you're not wrong -- basically as soon as I read 'Congress can' I immediately LOL'd. Unfortunately I don't have any solution to this, as our system was clearly designed for, at bare minimum, a Congress which is at least slightly capable of functioning. Everything I've seen in the past decade though suggests that is no longer a reasonable thing to expect to be true at any point.
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Please name me some times this was used to the detriment of society
How about the incalculable amount of money wasted on "compliance devices" for firearms? Citizens were/are directly and negatively impacted by the flavor-of-the-week regulations BATF decided on a whim.
People are literally guessing how the BATF might decide to interpret vague laws from the 30's this week... only for them to change their mind next week and turn everyone into criminals, only to reverse course a few months later, etc.
The lawmakers skirted their responsibility to create the gun control laws some people want, so the BATF would just make some up and enforce them. Imagine having your life ruined because some unelected crusading bureaucrat decided the stock you've had on your rifle for 10 years is suddenly illegal today...
People are literally guessing how the BATF might decide to interpret vague laws from the 30's this week... only for them to change their mind next week and turn everyone into criminals, only to reverse course a few months later, etc.
The lawmakers skirted their responsibility to create the gun control laws some people want, so the BATF would just make some up and enforce them. Imagine having your life ruined because some unelected crusading bureaucrat decided the stock you've had on your rifle for 10 years is suddenly illegal today...
But then surely this is something Congress can and should remedy? Why is it a better outcome that the least accountable branch of government should claim interpretive power that was not granted to it by Congress?
The SCOTUS decision basically told Congress they must write the laws instead of allowing agencies/departments to create their own "laws" that were not actually laws but were enforced like laws.
So, no, the power did not shift entirely to SCOTUS like some people have been mislead into believing. The power was taken away from the Executive Branch and restored to the Legislative Branch - as it should have been all along.
The Executive Branch (the president and their staff/appointees including those running the various enforcement agencies such as BATF, EPA, etc) have never been authorized to create laws... yet they got away with it anyway.
So, no, the power did not shift entirely to SCOTUS like some people have been mislead into believing. The power was taken away from the Executive Branch and restored to the Legislative Branch - as it should have been all along.
The Executive Branch (the president and their staff/appointees including those running the various enforcement agencies such as BATF, EPA, etc) have never been authorized to create laws... yet they got away with it anyway.
No, power was explicitly shifted to SCOTUS because the goal is that judges can take any form of interpretation of the law that they want that's favorable to their political outcome. Surely you're familiar with some of the stuff the 5th circuit has been doing right? The Texas abortion bounty hunter law stood because it relies on a incredibly odious interpretation of the law by an exceedingly corrupt and unaccountable court.
Congress can and does write laws. But the quibbling now is that companies can take cases to the 5th circuit for example and argue that XYZ novel chemical isn't a pollutant because it's not explicitly enumerated in the law even if it's causing vast amounts of environmental damage. Laws will always require some form of interpretation because you simply cannot enumerate everything that can and will happen in the future and that's historically how laws were written in the past. Which is why Chevron Deference existed in the first place.
Congress can and does write laws. But the quibbling now is that companies can take cases to the 5th circuit for example and argue that XYZ novel chemical isn't a pollutant because it's not explicitly enumerated in the law even if it's causing vast amounts of environmental damage. Laws will always require some form of interpretation because you simply cannot enumerate everything that can and will happen in the future and that's historically how laws were written in the past. Which is why Chevron Deference existed in the first place.
> No, power was explicitly shifted to SCOTUS because the goal is that judges can take any form of interpretation of the law that they want that's favorable to their political outcome.
> by an exceedingly corrupt and unaccountable court
I don't even know where to begin with this. Your personal politics are preventing you from seeing reality. This is some really low-level election-year propaganda you have decided to believe.
> But the quibbling now is that companies can take cases to the 5th circuit for example and argue that XYZ novel chemical isn't a pollutant because it's not explicitly enumerated in the law even if it's causing vast amounts of environmental damage
This is how the process is supposed to work. An agency is not allowed to just deem things unsafe and outlaw them. The process to determine if such a chemical is harmful or if a policy is acceptable is by way of the courts. What changed here is the agencies can no longer, unilaterally and without recourse or accountability, decide what is or is not illegal. They never had that power, yet they were allowed to pretend they did for way too long.
To circumvent that process, Congress (or your state legislature in the abortion example you brought up) can and should pass laws that direct the executive branch on how to enforce the laws and what exactly they want enforced. No, laws do not need to be extremely specific as you stated, but the boundaries of enforcement should be absolute. Nobody should have to guess if an agency is going to wake up today and decide something is illegal without an actual process.
In short, any argument in favor of the previous status-quo, supporting the Chevron Deference, is an argument in favor of unelected, unaccountable bureaucrats deciding the laws of the land with no oversight and no recourse. They may change the "laws" daily, weekly, never, nobody knows! That is an insane way to run a country...
> by an exceedingly corrupt and unaccountable court
I don't even know where to begin with this. Your personal politics are preventing you from seeing reality. This is some really low-level election-year propaganda you have decided to believe.
> But the quibbling now is that companies can take cases to the 5th circuit for example and argue that XYZ novel chemical isn't a pollutant because it's not explicitly enumerated in the law even if it's causing vast amounts of environmental damage
This is how the process is supposed to work. An agency is not allowed to just deem things unsafe and outlaw them. The process to determine if such a chemical is harmful or if a policy is acceptable is by way of the courts. What changed here is the agencies can no longer, unilaterally and without recourse or accountability, decide what is or is not illegal. They never had that power, yet they were allowed to pretend they did for way too long.
To circumvent that process, Congress (or your state legislature in the abortion example you brought up) can and should pass laws that direct the executive branch on how to enforce the laws and what exactly they want enforced. No, laws do not need to be extremely specific as you stated, but the boundaries of enforcement should be absolute. Nobody should have to guess if an agency is going to wake up today and decide something is illegal without an actual process.
In short, any argument in favor of the previous status-quo, supporting the Chevron Deference, is an argument in favor of unelected, unaccountable bureaucrats deciding the laws of the land with no oversight and no recourse. They may change the "laws" daily, weekly, never, nobody knows! That is an insane way to run a country...
> This is some really low-level election-year propaganda you have decided to believe.
There is no propaganda. Actions taken by a court that I view to be wholly corrupt is exactly why I left Texas, because the abortion bounty hunter laws followed by the banning of abortion had quick and decisive impact on my decision to stay in Texas.
> In short, any argument in favor of the previous status-quo, supporting the Chevron Deference, is an argument in favor of unelected, unaccountable bureaucrats deciding the laws of the land with no oversight and no recourse. They may change the "laws" daily, weekly, never, nobody knows! That is an insane way to run a country...
This is literally what the Supreme Court has been doing in the past five years alone, radically changing the status quo and upending precedent in a way that materially affects my life. People keep saying unelected, unaccountable bureaucrats but the supreme court and by extension, appointed federal judges are the epitome of that example. There is nothing I can do if I disagree with the decision of a for-life appointee, but the bureaucrats at least rotate out.
There is no propaganda. Actions taken by a court that I view to be wholly corrupt is exactly why I left Texas, because the abortion bounty hunter laws followed by the banning of abortion had quick and decisive impact on my decision to stay in Texas.
> In short, any argument in favor of the previous status-quo, supporting the Chevron Deference, is an argument in favor of unelected, unaccountable bureaucrats deciding the laws of the land with no oversight and no recourse. They may change the "laws" daily, weekly, never, nobody knows! That is an insane way to run a country...
This is literally what the Supreme Court has been doing in the past five years alone, radically changing the status quo and upending precedent in a way that materially affects my life. People keep saying unelected, unaccountable bureaucrats but the supreme court and by extension, appointed federal judges are the epitome of that example. There is nothing I can do if I disagree with the decision of a for-life appointee, but the bureaucrats at least rotate out.
They are not giving Congress any power they did not already have. Nothing is stopping Congress from abolishing the EPA or explicitly delimiting what they may or may not regulate.
The power to interpret matters of law is granted to the courts by the constitution, they do this every day.
Also, executive agencies are less accountable than judges, judges can be impeached. What can be done about the bureaucrat that decides to enact a civil forfeiture policy?
Also, executive agencies are less accountable than judges, judges can be impeached. What can be done about the bureaucrat that decides to enact a civil forfeiture policy?
So, how exactly can I impeach federal judges and the SCOTUS? Can you give me a guideline of how I can hold them accountable? And how many exactly have been impeached?
Your congressional representative can introduce articles of impeachment against any federal judge. You elected that representative to, you know, represent you.
We also need to remain mindful that just because some law or policy isn't preferred by yourself, does not mean there is consensus or that it is the right thing to do. People very often associate the lack of a specific pet law/policy to mean Congress is ineffective when the reality is that law/policy is not actually popular outside of our information bubble.
We also need to remain mindful that just because some law or policy isn't preferred by yourself, does not mean there is consensus or that it is the right thing to do. People very often associate the lack of a specific pet law/policy to mean Congress is ineffective when the reality is that law/policy is not actually popular outside of our information bubble.
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> because some unelected crusading bureaucrat decided
Like an appointed-for-life judge, perhaps?
Like an appointed-for-life judge, perhaps?
A lifetime appointment does not mean they are not accountable. The federal government was designed with so-called "checks and balances", and impeaching a federal judge is one of those checks and balances. Congress can impeach and remove any federal judge.
> A lifetime appointment does not mean they are not accountable.
Likewise, people getting hired to agency positions doesn’t mean they are not accountable, plus they usually come with domain-specific expertise, and it doesn’t take a literal act of congress to change them.
Likewise, people getting hired to agency positions doesn’t mean they are not accountable, plus they usually come with domain-specific expertise, and it doesn’t take a literal act of congress to change them.
The case at hand for the SCOTUS decision itself?
If I'm remembering correctly, the issue was that fishing regulations morphed into requiring boats that someone be onboard to monitor, and the entire cost of that was borne by the fishermen.
None of that was actually a part of the law, it was just a fever dream by a bureaucrat. What started out as “a law to regulate fishing” morphed into a new tax on fishing, and most importantly one that can’t be challenged for reasonableness in the courts.
Seems pretty reasonable to require Congress to pass a law that at least lays out the rough boundaries of the proposed regulations?
If I'm remembering correctly, the issue was that fishing regulations morphed into requiring boats that someone be onboard to monitor, and the entire cost of that was borne by the fishermen.
None of that was actually a part of the law, it was just a fever dream by a bureaucrat. What started out as “a law to regulate fishing” morphed into a new tax on fishing, and most importantly one that can’t be challenged for reasonableness in the courts.
Seems pretty reasonable to require Congress to pass a law that at least lays out the rough boundaries of the proposed regulations?
Part of the reason we even need a government is because people can't agree on what things like "to the detriment of society" even are.
By having to spend money for all this environmental and safety regulation, my companies cannot maximize shareholder value and I cannot make all the money I could be making.
The courts should not be able to make and apply any standards to government operations that it conveniently sees and defines as ambiguous, especially since a lot of their standards are frequently seen as more than ambiguous. We've seen this with their emergency "posthumous" clarifications of the Roe ruling by conflicting EMTALA, fertility clinics, and decades of health science.
Sure, the SCOTUS respects congress's views, except for things like voting rights, where the congress renewed it 390–33 and unanimously and was signed by a GW Bush. So they'll respect the congress when they agree with it and overturn it when they disagree.
And they'll disagree with findings of fact and overturn those when they disagree, they'll find standing where there is none.
Heads I win, tails you lose.
And they'll disagree with findings of fact and overturn those when they disagree, they'll find standing where there is none.
Heads I win, tails you lose.
It will just end up like Qualified Immunity. "Your honor, I was wearing a green shirt, this is unprecedented territory and totally different and Congress needs to clarify".
What historical uses of the Chevron deference do you actually find objectionable? Why can't those specific instances have been pushed back on, instead of just scrapping the whole thing?
What historical uses of the Chevron deference do you actually find objectionable? Why can't those specific instances have been pushed back on, instead of just scrapping the whole thing?
> ... really come down to people who are advocating for positions and regulations which are unachievable through the normal political, legislative process in the US...
I worry that "the normal political, legislative process" will be the death of our planet.
I worry that "the normal political, legislative process" will be the death of our planet.
I think it's easy to argue against it being the right decision simply due to the people involved on each side of the case.
For one, it was a very "partisan" ruling being a 6-3 conservative court ruling.
The fishing companies' legal representation for the case includes organizations with funding linked to Charles Koch, and the side that is condemning the outcome is an environmental protection group.
I'm no bootlicker. I don't side with corporations and billionaires over environmental protection groups unless there's an extremely compelling case for it.
I think that while you may technically be right about the flaws in the status quo, the end result of the ruling will be that companies now have a new mechanism to litigate every bad thing they want to dump into the environment to death whereas previously the administrative regulatory agencies were able to quickly strike down nonsense like that. I think they'll have a better avenue to now claim rules are ambigious that aren't actually ambiguous, appeal appeal appeal, and just keep going at it until they find friendly or uninformed judges.
And let's not forget that administrative agencies don't have a complete lack of enforceable ethics rules like the Supreme Court does. If a company wants to claim a chemical is ambiguously dangerous, they can now litigate the hell out of it all the way up to a surpreme court where a direct bribe to a judge is 100% legal.
For one, it was a very "partisan" ruling being a 6-3 conservative court ruling.
The fishing companies' legal representation for the case includes organizations with funding linked to Charles Koch, and the side that is condemning the outcome is an environmental protection group.
I'm no bootlicker. I don't side with corporations and billionaires over environmental protection groups unless there's an extremely compelling case for it.
I think that while you may technically be right about the flaws in the status quo, the end result of the ruling will be that companies now have a new mechanism to litigate every bad thing they want to dump into the environment to death whereas previously the administrative regulatory agencies were able to quickly strike down nonsense like that. I think they'll have a better avenue to now claim rules are ambigious that aren't actually ambiguous, appeal appeal appeal, and just keep going at it until they find friendly or uninformed judges.
And let's not forget that administrative agencies don't have a complete lack of enforceable ethics rules like the Supreme Court does. If a company wants to claim a chemical is ambiguously dangerous, they can now litigate the hell out of it all the way up to a surpreme court where a direct bribe to a judge is 100% legal.
All of that still filters down to- experts at agencies don’t have the final say, naive judges and a deadlocked congress do. It’s a terrible decision and everyone understands it correctly.
The ruling itself ironically provides an example of why it is a bad ruling: Gorsuch, authoring the majority opinion, repeatedly referred to "nitrous oxide" rather than nitrogen oxides. If the SCOTUS justices can't get this right, in the opinion itself, how can we expect them to make informed decisions on other scientific matters that are more complex?
It also seems legally dubious to me, because there will always logically be some level at which interpretive discretion is allowed in executing some statute. Laws cannot fundamentally anticipate every single scenario to which they might be applied. It's disingenuous or naive to believe that regulation is any different at some fundamental level from any other form of statute.
You can also turn your own argument on its head: if someone has a problem with a regulatory interpretation, they can always appeal it. SCOTUS could have ruled something more reasonable along these lines, to clarify how to establish abuse of regulation.
I tend to be deregulatory in my political sympathies in a lot of domains, but this is not how to go about the issue, in my opinion.
It also seems legally dubious to me, because there will always logically be some level at which interpretive discretion is allowed in executing some statute. Laws cannot fundamentally anticipate every single scenario to which they might be applied. It's disingenuous or naive to believe that regulation is any different at some fundamental level from any other form of statute.
You can also turn your own argument on its head: if someone has a problem with a regulatory interpretation, they can always appeal it. SCOTUS could have ruled something more reasonable along these lines, to clarify how to establish abuse of regulation.
I tend to be deregulatory in my political sympathies in a lot of domains, but this is not how to go about the issue, in my opinion.
Why wouldn't the argument here that courts and judges aren't experts at anything not apply to every single decision they make? If we're simply going to decide that courts shouldn't be trusted to decide anything "hard", shouldn't our local courts also defer to local government officials? It certainly would make it easier on the District Attorney's office if the County Judges were intended to "defer" to their opinion on forensics, and I'm sure the local sewer district would love to not have to waste time bringing expert witnesses to court to argue their case for violation of a local ordinance.
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A quick check of avalys's other posts shows that he opposes enforcement of pretty much every law, and that he always has an excuse for why this makes sense.
He's not coming at this from any sort of morality, or logic, or sound jurisprudence, or love of democracy or anything else... he's just another white collar anarchist who thinks he'll get slightly richer if the government is weaker.
He's not coming at this from any sort of morality, or logic, or sound jurisprudence, or love of democracy or anything else... he's just another white collar anarchist who thinks he'll get slightly richer if the government is weaker.
swaginator(1)
> All of these controversies over Supreme Court decisions really come down to people who are advocating for positions and regulations which are unachievable through the normal political, legislative process in the US getting upset that the Supreme Court is not allowing them to enact these policies through backdoors and loopholes rather than the democratic process.
Is that you, Justice Gorsuch?
Is that you, Justice Gorsuch?
Makes total sense. The Air Force is supposed to defend the country not to care about the health of its population. :-p
It's the Air Force. Really it should be the Navy or the Coast Guard cleaning it up, right?
Army Corps of Engineers
Glad to have them on the case. Did such a great job with those levees.
We will soon see what a huge and harmful deal the recent Chevron ruling is. The Supreme Court needs to be gutted.
Chevron has been zombie precedent for years. Do you really want the interpretation of administrative law changing every four years? This is just another example of the Supreme Court telling Congress to do their job which is where the political focus should be. If you want PFAS to be cleaned up, then get your congressperson to pass a law to have the executive branch do it. It is going to be much more effective in the long run.
Do you really want review of novel harmful chemicals to require an act of Congress to stop? PFAS are kind of iffy, the science is very mixed and it makes sense that there's going to be some flip-flopping depending on the administration. But like if there were some novel substance like DDT with similar toxcicity, that shouldn't require Congress to step in and say "no you can't put this in the water supply." Seems totally reasonable that the law should simply specify what effects require regulation and leave it to the administrators to determine which substances have which effects.
Congress doesn't need to pass a law per chemical, they need to firmly and clearly pass a law to follow up with what they want that bar for review to be in a way the Supreme Court is left without a doubt of what the existing laws meant to say.
The consequences of reversing Chevron definitely seem dire to me but the court's majority opinion of why they did is also pretty reasonable.
The consequences of reversing Chevron definitely seem dire to me but the court's majority opinion of why they did is also pretty reasonable.
I'd suggest you consider reading the laws that Congress has passed to create agencies. Congress already does this.
Congress does not simply write "This bill establishes the Department of Slinky Tossing" and lets the Executive define, without any restriction, what this agency should do.
Congress would at least define this agency as responsible for launching Slinkies in a manner that is at least partially airborne for some of it's trajectory.
Now here's where things get tricky, Congress must write in immutable words that must withstand decades of scrutiny on their definition. Let's say "airborne" was used because they did not want this agency merely cradling Slinkies into the ocean, nor did Congress want the Slinkies to remain in boxes.
So in a few years of tossing Slinkies around on earth, this "Department of Slinky Tossing" partners with NASA to throw Slinkies around on Mars.
A new opportunity arises for the true linguo-contrarian looking for a gladitorial match entrenched in establishing meaning: Congress used the term "airborne". Airborne requires an object being in air. But how does one define "air"?
Did Congress intend for air to refer to the atmosphere on Earth? The gaseous atmosphere around any planet? And really, what is a planet? Could this definition of "air" be restricted to gaseous mixtures consumable by humans? Who knows!
Now we must defer to a court to decide if the breathability of air impacts the definition of the term "airborne", and if the "Department of Slinky Tossing" is allowed to toss Slinkies on Mars simply because "airborne" has been ambiguously defined in both common usage and law.
Unfortunately, the Department of Slinky Tossing is unable to defend itself by claiming that Congress continued to fund their wiggly experiments, which to the agency, suggests the agency was still within permissible bounds.
Congress' appropriations process ensures there is an opportunity every year to refuse the "Department of Slinky Tossing"'s space aspirations if inter-planetary slinky tossing is a leap too far. The Court seems to disapprove of the notion that the appropriations process is Congress allowing an agency to continue to operate as it's been running.
Ultimately, I think this ruling simply cements that language-pedants ought to spend their energy finding a fufilling hobby.
Congress does not simply write "This bill establishes the Department of Slinky Tossing" and lets the Executive define, without any restriction, what this agency should do.
Congress would at least define this agency as responsible for launching Slinkies in a manner that is at least partially airborne for some of it's trajectory.
Now here's where things get tricky, Congress must write in immutable words that must withstand decades of scrutiny on their definition. Let's say "airborne" was used because they did not want this agency merely cradling Slinkies into the ocean, nor did Congress want the Slinkies to remain in boxes.
So in a few years of tossing Slinkies around on earth, this "Department of Slinky Tossing" partners with NASA to throw Slinkies around on Mars.
A new opportunity arises for the true linguo-contrarian looking for a gladitorial match entrenched in establishing meaning: Congress used the term "airborne". Airborne requires an object being in air. But how does one define "air"?
Did Congress intend for air to refer to the atmosphere on Earth? The gaseous atmosphere around any planet? And really, what is a planet? Could this definition of "air" be restricted to gaseous mixtures consumable by humans? Who knows!
Now we must defer to a court to decide if the breathability of air impacts the definition of the term "airborne", and if the "Department of Slinky Tossing" is allowed to toss Slinkies on Mars simply because "airborne" has been ambiguously defined in both common usage and law.
Unfortunately, the Department of Slinky Tossing is unable to defend itself by claiming that Congress continued to fund their wiggly experiments, which to the agency, suggests the agency was still within permissible bounds.
Congress' appropriations process ensures there is an opportunity every year to refuse the "Department of Slinky Tossing"'s space aspirations if inter-planetary slinky tossing is a leap too far. The Court seems to disapprove of the notion that the appropriations process is Congress allowing an agency to continue to operate as it's been running.
Ultimately, I think this ruling simply cements that language-pedants ought to spend their energy finding a fufilling hobby.
Why ask if I've read the law and then come up with a story about airborne slinkies? The Chevron case itself was an already easy to explain example: lack of clear definition of source combined with lack of clear deference to the agency to decide. If the law was just written clearly then the EPA wouldn't have changed it's interpretation of what a source is over the years. If the EPA was supposed to be able to make more blanket decisions on the matter then the law needn't halfway spell out the details in that portion and just say that instead.
A base assumption that every law comes with an implied "lets the Executive define, without any restriction, what this agency should do" is certainly not something I'd want the country to just assume (and not even something I'm sure I want any law to specify outright either...)
A base assumption that every law comes with an implied "lets the Executive define, without any restriction, what this agency should do" is certainly not something I'd want the country to just assume (and not even something I'm sure I want any law to specify outright either...)
A base assumption that every law comes with an implied "lets the Executive define, without any restriction, what this agency should do" is certainly not something I'd want…
You badly misunderstand what Chevron deference was about and how it worked. This is not at all how it worked.
You badly misunderstand what Chevron deference was about and how it worked. This is not at all how it worked.
The text you've quoted contains GP's interpretation of how these laws in general are written and my response to that. It is not related to my understanding of the Chevron deference. Putting it in separate paragraph was supposed to make that clear so sorry if it was left ambiguous. My understanding of the Chevron defence largely stems from and concurs with the notes in the "Opinion of the Court" section of https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf
If you meant something else then all the same you've left no other clues to interpret what your assertion is disagreeing with or why so.
If you meant something else then all the same you've left no other clues to interpret what your assertion is disagreeing with or why so.
Asking you as a fellow human: do you have any hope of congress actually making pressing regulation like this while companies opt to just poison people (which they historically have done over and over again?)
The only thing that makes it pressing is congress waited ~40 years without clarifying the law and instead relying on a particular interpretation of a particular court. I don't have hope that change will now happen overnight but I do have hope it means we will not let this kind false urgency and consequences mistake repeat so much in the coming years. I'd rather we clearly set policy via our democratic branch than behold the interpretation of it to the latest courts of unelected members, even if it means one of our mistakes in that regard rears its head for a bit. Sometimes the options in life are "shit flavor 1 or shit flavor 2?" not "1 is shit so are you human in wanting option 2?"
This can be done without Chevron - Congress just needs to be more explicit than they were pre-Chevron, or else risk lengthy litigation.
This only serves to further hamstring any hope of slowing the climate crisis. Instead of climate scientists and experts making sensible small policies in service of general goals laid out by congress (i.e. Clean air act etc), we will have to rely on a purely reactive mess of lobyists and general congressional bullshittery tasked with implementing technical details at a layer of abstraction far from where those institutions are supposed to be spending their attention. This ruling was celebrated by the biggest polluters and environmental criminals in human history for a reason.
> Chevron has been zombie precedent for years.
Where do you get this bullshit? "Chevron" was not a zombie precedent, it was very much the defining factor of the US administrative state.
Where do you get this bullshit? "Chevron" was not a zombie precedent, it was very much the defining factor of the US administrative state.
A quick google search can quickly find how the legal community has viewed chevron as zombie precedent...
Zombie Chevron: A Celebration
[https://moritzlaw.osu.edu/sites/default/files/2022-01/10.Sun...]
Gorsuch Says "Chevron Doctrine" is Dead Even Though the US Supreme Court Refuses to Say So [https://www.afslaw.com/perspectives/environmental-law-adviso...]
Totally disagree. Administrative law has not changed every four years, and it is literally impossible for Congress to legislate every detail of every policy.
The intent of overturning Chevron was to do away with regulations, and it's likely to work. Congress could spend a month working out the exact right policies and chemicals and requirements for PFAS, and there would still be some loophole / discovery that a chemical is slightly different than exactly what was legislated. And in the meantime, the
This is literally like saying the Alphabet board of directors should have to write every product requirement for every product in every company in Alphabet's portfolio. Delegation is the only way large organizations can work effectively, and outlawing it in government is expressly intended to make government impossible.
The intent of overturning Chevron was to do away with regulations, and it's likely to work. Congress could spend a month working out the exact right policies and chemicals and requirements for PFAS, and there would still be some loophole / discovery that a chemical is slightly different than exactly what was legislated. And in the meantime, the
This is literally like saying the Alphabet board of directors should have to write every product requirement for every product in every company in Alphabet's portfolio. Delegation is the only way large organizations can work effectively, and outlawing it in government is expressly intended to make government impossible.
That is not what the decision overturning Chevron says. The requirement is not that Congress now has to write regulation about specific chemicals or specific details of every area. It's that ambiguities in the authority granted by Congress to regulatory agencies are resolved by the courts - not by the agencies themselves.
Nothing stops Congress from writing a law which unambiguously grants an agency broad authority to regulate (for instance) chemicals and pollutants.
Nothing stops Congress from writing a law which unambiguously grants an agency broad authority to regulate (for instance) chemicals and pollutants.
> that ambiguities in the authority granted by Congress to regulatory agencies are resolved by the courts - not by the agencies themselves.
that is exactly the problem; those decisions should be made by regulatory agencies, who are experts in science, not on courts, who are experts in the law.
It's a horrible ruling that makes these types of decisions even more political than they already were.
that is exactly the problem; those decisions should be made by regulatory agencies, who are experts in science, not on courts, who are experts in the law.
It's a horrible ruling that makes these types of decisions even more political than they already were.
You’re being disingenuous. Congress is deadlocked and ineffective, so to say “Nothing stops Congress” ignores reality. “Congress stops Congress” for years, if not decades, until enough of the older cohorts age out and functional reps get elected [1] [2]. 25% of Congress doesn't even believe in climate change [3]. Ergo, pack the court and override the dysfunction. This works itself out through demographics eventually [4] [5] (~1.8M voters 55+ age out every year, ~5k/day, ~4M young voters age into voting each year). We do what we do best as a species: we kick the can into the future.
[1] https://www.axios.com/2023/12/19/118-congress-bills-least-un...
[2] https://www.pewresearch.org/short-reads/2022/03/10/the-polar...
[3] https://www.theguardian.com/us-news/article/2024/aug/05/clim...
[4] https://www.pewresearch.org/politics/wp-content/uploads/site...
[5] https://www.ft.com/content/c361e372-769e-45cd-a063-f5c0a7767... | https://archive.today/lQoLa
[1] https://www.axios.com/2023/12/19/118-congress-bills-least-un...
[2] https://www.pewresearch.org/short-reads/2022/03/10/the-polar...
[3] https://www.theguardian.com/us-news/article/2024/aug/05/clim...
[4] https://www.pewresearch.org/politics/wp-content/uploads/site...
[5] https://www.ft.com/content/c361e372-769e-45cd-a063-f5c0a7767... | https://archive.today/lQoLa
So, you think we should have the president make the laws, and the president should also control the courts so that they’re unable to stop him from making the laws?
Do you not see a potential problem with this approach?
Congress is not deadlocked. What you mean is, you support a policy which is not popular enough to pass Congress, and you feel strongly enough about the need for this policy that you think it should bypass the American democratic system and be enacted through extra-legal means if necessary.
Tell me, which party is threatening democracy again?
Do you not see a potential problem with this approach?
Congress is not deadlocked. What you mean is, you support a policy which is not popular enough to pass Congress, and you feel strongly enough about the need for this policy that you think it should bypass the American democratic system and be enacted through extra-legal means if necessary.
Tell me, which party is threatening democracy again?
Congress is the one that creates these agencies, and Congress chooses to fund or not fund them on a routine basis, and new executives must be approved by Congress and firing is severely restricted. In a healthy democracy, should a legislative body have the prerogative to be general and create new agencies empowered to act on general & vague mandates? Not obvious.
Congress never loses the reigns here. This is the legislative will, as they are created and financially sustained by acts of legislature, and their leadership approval and dismissal process is determined by legislature. These agencies are "executive" in a very limited way. They are moreso extensions of Congressional power with very limited execute oversight.
Congress never loses the reigns here. This is the legislative will, as they are created and financially sustained by acts of legislature, and their leadership approval and dismissal process is determined by legislature. These agencies are "executive" in a very limited way. They are moreso extensions of Congressional power with very limited execute oversight.
Yes, Congress is deadlocked. There are many bills which have the support of a majority of the House but cannot pass because of the Hastert rule.
toomuchtodo(1)
You're not wrong that Congress is now incapable of doing its important job, but I don't know if I agree that the answer is to just trust the executive branch. Keep in mind even if you like the current guy that it's about to be run by a guy you definitely don't like.
What I'm saying is it's complicated, and it seems we are paying the price for letting our government be utterly destroyed in its effectiveness.
What I'm saying is it's complicated, and it seems we are paying the price for letting our government be utterly destroyed in its effectiveness.
> You're not wrong that Congress is now incapable of doing its important job, but I don't know if I agree that the answer is to just trust the executive branch. Keep in mind even if you like the current guy that it's about to be run by a guy you definitely don't like.
If the options are hope or action, and action might need to be fixed down the road, I ain't pickin' hope. This is a reasonable risk to accept based on the situation and options available, we are at an impasse.
> What I'm saying is it's complicated, and it seems we are paying the price for letting our government be utterly destroyed in its effectiveness.
Agreed, but the only path forward is to try to fix it, not bikeshed about how sad it is we got here. Talk to Newt about that.
https://www.theatlantic.com/magazine/archive/2018/11/newt-gi...
https://history.princeton.edu/about/publications/burning-dow...
https://www.thedailybeast.com/the-inside-story-of-how-newt-g...
If the options are hope or action, and action might need to be fixed down the road, I ain't pickin' hope. This is a reasonable risk to accept based on the situation and options available, we are at an impasse.
> What I'm saying is it's complicated, and it seems we are paying the price for letting our government be utterly destroyed in its effectiveness.
Agreed, but the only path forward is to try to fix it, not bikeshed about how sad it is we got here. Talk to Newt about that.
https://www.theatlantic.com/magazine/archive/2018/11/newt-gi...
https://history.princeton.edu/about/publications/burning-dow...
https://www.thedailybeast.com/the-inside-story-of-how-newt-g...
>What I'm saying is it's complicated, and it seems we are paying the price for letting our government be utterly destroyed in its effectiveness.
I guess the Constitution really is a suicide pact after all.
I guess the Constitution really is a suicide pact after all.
> We will soon see what a huge and harmful deal the recent Chevron ruling is. The Supreme Court needs to be gutted.
You dont seem to understand the role of the judiciary. Even if the removal of Chevron deference has the most destructive effect of any ruling of all time, that in no way suggests the law was interpreted incorrectly which is the actual purpose of the court. Suggesting the court should be gutted because of harmful effects just shows you don’t want a judiciary at all.
You dont seem to understand the role of the judiciary. Even if the removal of Chevron deference has the most destructive effect of any ruling of all time, that in no way suggests the law was interpreted incorrectly which is the actual purpose of the court. Suggesting the court should be gutted because of harmful effects just shows you don’t want a judiciary at all.
Congress has the power to impeach and remove judges. It’s a political decision to do such a thing. I advocate that Congress exercise this power. This is no way means I don’t want a judiciary. The reason Congress was given this power was precisely in case the Court went too far in its rulings or otherwise did things that are politically unacceptable.
I agree with the dissenters in the ruling under discussion. The ruling was badly wrong and it’s clear that the Court is going to expand on this rulimg and it’s going to have dire consequences. Removal of justices is warranted.
I agree with the dissenters in the ruling under discussion. The ruling was badly wrong and it’s clear that the Court is going to expand on this rulimg and it’s going to have dire consequences. Removal of justices is warranted.
Another thing this court has highlighted is we shouldn't rest on specific legal interpretations when big and important ambiguities are raised. Whether it's the interpretation of the Constitution as protecting abortion in Roe v. Wade, whether or not the 14th amendment does or does not allow factoring race into college admissions via affirmative action in Grutter v. Bollinger, when courts must defer to agency interpretation of a law as found in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., or other such important decisions it's not something we should just leave as settled via current interpretation rather something we should seek to reinforce via updates to the law. That such important things make it to the Supreme Court to decide interpretation should be hint it may not be as clear cut as we'd like to have believed.
The biggest factor in limiting the Supreme Court's power is writing laws that supersede the rulings on existing laws. If we just rest on ever increasing current interpretations of past laws to drive current policy then we are going to give an ever increasing amount of power to the judicial branch.
The biggest factor in limiting the Supreme Court's power is writing laws that supersede the rulings on existing laws. If we just rest on ever increasing current interpretations of past laws to drive current policy then we are going to give an ever increasing amount of power to the judicial branch.
Rather, expanded. Way too much is influenced by the decisions of a few. The opposing political party (nor the American people) shouldn't ever fear that one president could turn the country for decades just because they had the power to appt 1 or 2 justices
I don't know what gutting the supreme court actually means, but this is incentive for Congress to work together and actually write laws instead of shunting this responsibility to agencies whos rules change every 4 years.
Ummm… I assume you are complaining about the Loper Bright decision that ended “Chevron deferrence”, correct? You do realize that the Chevron decision was to give Dick Cheney his way on environmental questions, yes?
Loper Bright says that regulators can’t change rules on a whim as they go along, and ignore/exceed congressional authority. What part of that do you have a problem with?
Loper Bright says that regulators can’t change rules on a whim as they go along, and ignore/exceed congressional authority. What part of that do you have a problem with?
For 40 years or so laws granting regulatory authority to federal agencies were written with the understanding that Chevron Deference was the law of the land. Now those laws grating regulatory authority
are going to be considered too vague. What will happen is that regulatory agencies will be thwarted in their duty to protect the public. Where the court is headed is that they will require a level of specificity in writing laws that grant regulatory authority that is impractical. Read what the dissenting opinions were and see where they think things are headed.
I think the reality is that regulations will become more “sticky”. There will be a motivation to get it “right” the first time. Overall, I am happy to see an end to capricious reinterpretation with every change of administration. I don’t expect that we will see more specific legislation.
There wasn’t a capricious change with every administration. You can point to isolated examples but not some over arching, wide ranging scheme. Your view about it being a good thing that Chevron is gone will not age well. You will be like the Texas ranchers that vote Republican and complain about oil companies polluting their water.
I presume the GP is frustrated by Congress's inability to do anything, and at this moment considers "Just trust the executive branch to be acting in good faith" as an acceptable solution.
I suppose they probably way overestimate the odds that we won't have a brand new executive branch with wildly different priorities and definition of reality in 5 months.
I suppose they probably way overestimate the odds that we won't have a brand new executive branch with wildly different priorities and definition of reality in 5 months.
Exactly. Chevron was a reasonable decision and the only reason it got overturned was a concerted effort by lobbyists, billionaires, Heritage Foundation, and corporate boards to overturn something that kept them from paying for the costs of their damage to the air, water, and ecosystems where we live. The US oligopoly is showing through in the manner of socializing costs and privatizing profits.
If the courts decide against the USAF's interpretation of the ruling, will you change your mind?
Why the heck is one department of the Executive Branch arguing against another when the latter is the one with the specific expertise to judge such a thing?!?!
The article itself makes this point, raising the question of why this hasn't already been resolved internally.
But legal experts noted that Chevron does not affect EPA enforcement actions like the Tucson order – it only affects the rule-making process.
Moreover, one arm of the administration cannot sue another, so the military cannot sue the EPA, and the case would never end up in court where the Chevron decision would come into play, said Walter Mugdan, a former EPA Superfund director. Instead, it would be resolved internally by a presidential administration instead of the judiciary.
But legal experts noted that Chevron does not affect EPA enforcement actions like the Tucson order – it only affects the rule-making process.
Moreover, one arm of the administration cannot sue another, so the military cannot sue the EPA, and the case would never end up in court where the Chevron decision would come into play, said Walter Mugdan, a former EPA Superfund director. Instead, it would be resolved internally by a presidential administration instead of the judiciary.
You're attracting downvotes, but I think you make a good point. It's a legitimate question to ask, why would the Air Force, which is very much under the control of the executive, be defiant in this case? I would expect the current administration to be supportive of the EPA. Is this some kind of political maneuver? I mean, the president is currently making the argument for SCOTUS reform, so this could be a way of making it look like a good idea.
It's not at all unusual for large organizations to have that kind of internal conflict.
For an IT example, consider employees trying to circumvent corporate computer security rules that they feel get in the way of doing their jobs.
For an IT example, consider employees trying to circumvent corporate computer security rules that they feel get in the way of doing their jobs.
In theory the President controls the entire executive branch but in practice they do not.
They have expertise in air support. The EPA has expertise cleaning up superfund sites
One is a regulatory agency, the other is not. USAF doesn’t benefit from Chevron like EPA and others do (or did). Also these cleanups come out of their budgets and they’d rather (mis)spend it elsewhere.
Sure, but the USAF is directly under the control of SecDef, who is a member of the Cabinet. The sitting president is a Democrat, which suggests he supports the EPA's position here. He could order the USAF to comply. This seems like something that would not just fly under the radar, so the choice to defy the EPA has to be intentional.
Of course it’s intentional. The executive is not monolithic. If directed by high enough up they might accept the now-disputed EPA rules but EPA is not their boss. Agencies work against each other all the time.
> If directed by high enough up they might accept the now-disputed EPA rules
Since we're talking about the military, it's less legally complicated than it might be with some other agencies: the president could make that happen with a phone call, there's not really any "might" about it. One assumes he either doesn't know or care what's going on, or (more interestingly, and I think more likely) the OLC has reasons for wanting things to go the way they're going.
Since we're talking about the military, it's less legally complicated than it might be with some other agencies: the president could make that happen with a phone call, there's not really any "might" about it. One assumes he either doesn't know or care what's going on, or (more interestingly, and I think more likely) the OLC has reasons for wanting things to go the way they're going.
This is just the beginning of the dysfunction created by the Supreme Court. Hope you are wealthy enough to live in away from industry and have good water filtration systems.
The government has a responsibility to protect the public from pollution. If the cost come from the military budget, national government budget or local government budget is something the different departments can fight over, but the outcome is still the same.