The Beginning of the End for Chevron Deference?

[ll74]

Not at all. In the cases where the law is clear and unambiguous there is no change at all to the agencies.

In the cases where the law is unclear and ambiguous, the first interpretation is still done by the agency. The agency bureaucracy still says, "we think this is what Congress meant". In cases where that is not challenged, that's the end of it.

In someone challenges the interpretation, the plaintiffs still must challenge it through the established process, to an administrative law court. The plaintiffs make their argument. The Agency makes its argument. The administrative court makes it's decisions. If it's an uncontroversial or easily interpreted law, the administrative court sides with the agency.

The only change would happen when a controversial interpretation is challenged, if the administrative law judge decides it is not easily interpreted or the agency is wrong, then they find for the plaintiff and the particular law or regulation - goes back to the Agency to try again. If the Agency can't come up with an interpretation that passes muster in their own administrative law system, then the Agency can go to Congress and request a clarification.

I think you underestimate the number of cases this will impact. There's a reason why deference was started. At the very least, decisions will be challenged to delay. The court cases are going to rise.

 

[Paul_Chance]

I think you overestimate the number of cases this will impact. There's a reason why deference was started.

Did you mean underestimate the number of cases?

Yes, there was a reason - the Court (back in 1984) was attempting to streamline the administrative law courts for the agencies.

Deference doesn't mean "the Agency is always right", it means "the assumption is that the agency is right". So, rather than two interested parties before a neutral judge, it shifted the burden of proof from the Agency (to prove it's interpretation was correct) to the plaintiff (to prove the Agency was wrong).

As the Administrative state grew, the administrative law courts were perceived as overloaded.

 

[ll74]

Did you mean underestimate the number of cases?

Yes, there was a reason - the Court (back in 1984) was attempting to streamline the administrative law courts for the agencies.

Deference doesn't mean "the Agency is always right", it means "the assumption is that the agency is right". So, rather than two interested parties before a neutral judge, it shifted the burden of proof from the Agency (to prove it's interpretation was correct) to the plaintiff (to prove the Agency was wrong).

As the Administrative state grew, the administrative law courts were perceived as overloaded.

I did.

I know what deference means.

This will impact a large number of cases and the result will be the court system making policy.

 

[Paul_Chance]

I did.

I know what deference means.

This will impact a large number of cases and the result will be the court system making policy.

Do you have an actual number, so we can compare and see if my underestimation or your overestimation is grounded in some bit of data? I don't think the CBO scores court decisions. I have no hard data point, though I am sure we could google something.

My perception is that it was be relatively minor in comparison to the existing case loads.

The political side of the game, which is driving much of the media narrative, is because though these cases are few, a single case can have a significant impact.

The Agencies will still make policy - it will fall back on the courts to interpret the law when ambiguous or unclear - which is the courts job, not the agencies job. It will push back on congress to not write or approve ambiguous laws. (Let's not kid ourselves there, sometime the ambiguity is law is deliberate, so as to enable them to gather enough votes to pass unpopular laws.)

 

[ll74]

Do you have an actual number, so we can compare and see if my underestimation or your overestimation is grounded in some bit of data? I don't think the CBO scores court decisions. I have no hard data point, though I am sure we could google something.

I don't.

My perception is that it was be relatively minor in comparison to the existing case loads.

Based on what?

The political side of the game, which is driving much of the media narrative, is because though these cases are few, a single case can have a significant impact.

I haven't listened to the media narrative.

The Agencies will still make policy - it will fall back on the courts to interpret the law when ambiguous or unclear - which is the courts job, not the agencies job. It will push back on congress to not write or approve ambiguous laws. (Let's not kid ourselves there, sometime the ambiguity is law is deliberate, so as to enable them to gather enough votes to pass unpopular laws.)

If the agencies don't have teeth (i.e. deference), more cases than current will be challenged

Courts will interpret ambiguous laws, hence making policy.

If youve read laws at all, you'll recognize that most laws are lazy and rely on others to fill in the blanks.

 

[Paul_Chance]

I don't.


Based on what?


I haven't listened to the media narrative.


If the agencies don't have teeth (i.e. deference), more cases than current will be challenged

Courts will interpret ambiguous laws, hence making policy.

If youve read laws at all, you'll recognize that most laws are lazy and rely on others to fill in the blanks.

LOL - I agree definitely on the lazy law writing, though, that doesn't come anywhere close to "most", but there are certainly plenty of lazy laws out there, especially since we've gone to the massive omnibus laws.

I googled it - the Chevron Deference is cited in approximately 450 cases a year at the Appellate Courts, out of 50,000 total cases. So, 0.009 percent of the cases. I think the courts can absorb a 0.009 percent change in their caseload.

There are slightly over 2,000 administrative law judges in service today, so that comes down to 1 case a year for less than a quarter of the judges. Again, no big deal.

 

[ll74]

LOL - I agree definitely on the lazy law writing, though, that doesn't come anywhere close to "most", but there are certainly plenty of lazy laws out there, especially since we've gone to the massive omnibus laws.

I googled it - the Chevron Deference is cited in approximately 450 cases a year at the Appellate Courts, out of 50,000 total cases. So, 0.009 percent of the cases. I think the courts can absorb a 0.009 percent change in their caseload.

There are slightly over 2,000 administrative law judges in service today, so that comes down to 1 case a year for less than a quarter of the judges. Again, no big deal.

I disagree. Taking away power from agencies and allowing more policy created by courts is troublesome.

 

[Paul_Chance]

I disagree. Taking away power from agencies and allowing more policy created by courts is troublesome.

Thats probably our point of disagreement here - as I see it Agencies will still create policy, in the form of regulations, which will then end up in the CFR. Only in those rare cases where the regulations are contested will they end up in the courts to decide if the policy is a faithful application of the law. That is, by definition, the courts job. The courts are also free to bring in any experts they want to help with highly technical decisions (the whole special master/expert witness process).

The Agency will still be able to explain their interpretation, line up their experts to back up their interpretation, and present the case for why their interpretation is correct. If the specific regulation is overturned by the courts, it goes back to the agency to try again or back to congress to amend the law and provide clarity.

I don't see either the courts or pushing back on congress as bad things. In the case of particularly horrendously written laws, the Agency is always free to go to Congress and say "before we set the policy, you need to clear this up for us", which would be a good thing.

 

[Chobham]

That's why it is more efficient and smart to push decisions to an agency that is built to handle the decisions. Either the legislative branch will grow to bring those experts in more or the judicial branch will be backlogged with regulatory decisions and will ultimately be engaged on more policy making.

Neither would be preferential for our economy and countrym

Of course, bestow on the administrative de facto dictatorial powers. Bypass the legislative and the Judicial.

Its long been know and acknowledged that a dictatorship is the most efficient form of government, and best of all is a beneficent dictatorship. But the dictator always dies and you have no idea what the replacement is going to be.

So as far as Chevron Deference goes, so long, good bye, don't let the door hit you in the ass on the way out.

 

[ll74]

Of course, bestow on the administrative de facto dictatorial powers. Bypass the legislative and the Judicial.

Its long been know and acknowledged that a dictatorship is the most efficient form of government, and best of all is a beneficent dictatorship. But the dictator always dies and you have no idea what the replacement is going to be.

So as far as Chevron Deference goes, so long, good bye, don't let the door hit you in the ass on the way out.

Agencies aren't a dictatorship
They contain the majority of expertise for the subject matter and therefore speak to the subject matter better than others.

But I get that the right doesn't like that.

 

[ll74]

Thats probably our point of disagreement here - as I see it Agencies will still create policy, in the form of regulations, which will then end up in the CFR. Only in those rare cases where the regulations are contested will they end up in the courts to decide if the policy is a faithful application of the law. That is, by definition, the courts job. The courts are also free to bring in any experts they want to help with highly technical decisions (the whole special master/expert witness process).

The Agency will still be able to explain their interpretation, line up their experts to back up their interpretation, and present the case for why their interpretation is correct. If the specific regulation is overturned by the courts, it goes back to the agency to try again or back to congress to amend the law and provide clarity.

I don't see either the courts or pushing back on congress as bad things. In the case of particularly horrendously written laws, the Agency is always free to go to Congress and say "before we set the policy, you need to clear this up for us", which would be a good thing.

Chevron deference originated in the courts. My question would be, why was it needed then and all of a sudden it isn't? What has changed and why?

 

[BabyBoomer50s]

Of course, bestow on the administrative de facto dictatorial powers. Bypass the legislative and the Judicial.

Its long been know and acknowledged that a dictatorship is the most efficient form of government, and best of all is a beneficent dictatorship. But the dictator always dies and you have no idea what the replacement is going to be.

So as far as Chevron Deference goes, so long, good bye, don't let the door hit you in the ass on the way out.

 

[Chobham]

Agencies aren't a dictatorship
They contain the majority of expertise for the subject matter and therefore speak to the subject matter better than others.

But I get that the right doesn't like that.

Do you bother to think for yourself at all?

 

[Paul_Chance]

Chevron deference originated in the courts. My question would be, why was it needed then and all of a sudden it isn't? What has changed and why?

Largely because nothing ever stands still, though we might like it to.

The cases (two of them) that reached the court allege agency over-reach. A law passed by Congress (signed by Trump) required that human monitors be placed on fifty percent of herring fishing vessels. Then, the agency, when it realized the cost of the monitors, implemented a rule that the herring boats had to pay for the monitors (government employees), because it was too expensive for the agency.

This significantly impacted the fishing boats and companies (or so they claim). Multiple boats and fishing companies sued in multiple jurisdictions, saying "there is nothing in the law that says we have to pay for them", which is factually correct. Some appeals courts found for the fishers. Some found for the agency, which sets up the cases to go to the Supreme Court.

Hence, the Chevron Deference, which says that as long as the regulation is "reasonable", then the Agency is correct, is being reconsidered.

Nothing has really changed, just cases have arisen that necessitate a revisiting and as potential revision. That's why I hold that the controversy around this case is primarily a media construction, meant to sell more advertising. (LOL - yes, I am that cynical of the media.)

 

[Chobham]

Largely because nothing ever stands still, though we might like it to.

The cases (two of them) that reached the court allege agency over-reach. A law passed by Congress (signed by Trump) required that human monitors be placed on fifty percent of herring fishing vessels. Then, the agency, when it realized the cost of the monitors, implemented a rule that the herring boats had to pay for the monitors (government employees), because it was too expensive for the agency.

This significantly impacted the fishing boats and companies (or so they claim). Multiple boats and fishing companies sued in multiple jurisdictions, saying "there is nothing in the law that says we have to pay for them", which is factually correct. Some appeals courts found for the fishers. Some found for the agency, which sets up the cases to go to the Supreme Court.

Hence, the Chevron Deference, which says that as long as the regulation is "reasonable", then the Agency is correct, is being reconsidered.

Nothing has really changed, just cases have arisen that necessitate a revisiting and as protentional revision. That's why I hold that the controversy around this case is primarily a media construction, meant to sell more advertising. (LOL - yes, I am that cynical of the media.)

What you failed to mention is there is a long standing precedent that states that any regulation that involves restitution, financial or criminal, not explicitly specified by congress the finding MUST be found in favor of the plaintiff.

 

[ll74]

Largely because nothing ever stands still, though we might like it to.

The cases (two of them) that reached the court allege agency over-reach. A law passed by Congress (signed by Trump) required that human monitors be placed on fifty percent of herring fishing vessels. Then, the agency, when it realized the cost of the monitors, implemented a rule that the herring boats had to pay for the monitors (government employees), because it was too expensive for the agency.

This significantly impacted the fishing boats and companies (or so they claim). Multiple boats and fishing companies sued in multiple jurisdictions, saying "there is nothing in the law that says we have to pay for them", which is factually correct. Some appeals courts found for the fishers. Some found for the agency, which sets up the cases to go to the Supreme Court.

Hence, the Chevron Deference, which says that as long as the regulation is "reasonable", then the Agency is correct, is being reconsidered.

Nothing has really changed, just cases have arisen that necessitate a revisiting and as potential revision. That's why I hold that the controversy around this case is primarily a media construction, meant to sell more advertising. (LOL - yes, I am that cynical of the media.)

Yes, this SCOTUS appears destined to fuck over precedent every chance it gets....and that truly is more of my complaint than anything else here.

When you keep saying "it's no big deal"....I don't agree at all. Courts are supposed to be stabilizing forces that make small changes over time based on incremental inconsistencies and this court appears promed to target longstanding rulings with a wrecking ball.

Removing Chevron deference will absolutely have a drastic impact on regulation. And this court doesn't seem poised to address the issue with precision.

 

[Chobham]

Yes, this SCOTUS appears destined to fuck over precedent every chance it gets....and that truly is more of my complaint than anything else here.

When you keep saying "it's no big deal"....I don't agree at all. Courts are supposed to be stabilizing forces that make small changes over time based on incremental inconsistencies and this court appears promed to target longstanding rulings with a wrecking ball.

Removing Chevron deference will absolutely have a drastic impact on regulation. And this court doesn't seem poised to address the issue with precision.

As well it should. No agency should be allowed dictatorial powers.

 

[ll74]

As well it should. No agency should be allowed dictatorial powers.

Deference is not dictatorial...no matter how many times you say it is.

 

[Rightguide]

Congress can’t be an expert on everything. If the SCOTUS eliminates Chevron deference, the result will be more legislation written by big corporations.

It's very simple. Congress makes the laws and the federal government executes those laws. The Executive Branch has no constitutional authority to create regulatory law beyond the scope and intent of Congress. It's about the law, not what "experts" think. If you want "experts" to create law instead of a Congress elected by the people of the United States, you have to amend the Constitution to say so. Chevron as we know it is going down. It will be completely wiped out or it will be sharply curtailed.

 

[BrightShinyGirl]

It's very simple. Congress makes the laws and the federal government executes those laws. The Executive Branch has no constitutional authority to create regulatory law beyond the scope and intent of Congress. It's about the law, not what "experts" think. If you want "experts" to create law instead of a Congress elected by the people of the United States, you have to amend the Constitution to say so. Chevron as we know it is going down. It will be completely wiped out or it will be sharply curtailed.

Chevron deference has always excluded clear violations of Congressional intent by the enforcement agencies.

 

[ll74]

It's very simple. Congress makes the laws and the federal government executes those laws. The Executive Branch has no constitutional authority to create regulatory law beyond the scope and intent of Congress. It's about the law, not what "experts" think. If you want "experts" to create law instead of a Congress elected by the people of the United States, you have to amend the Constitution to say so. Chevron as we know it is going down. It will be completely wiped out or it will be sharply curtailed.

The executive branch isn't creating law.

 

[Rightguide]

Of course, bestow on the administrative de facto dictatorial powers. Bypass the legislative and the Judicial.

That's the goal of all of these totalitarian Democrats and Marxists. It would be so much simpler without a Constitution or a cumbersome Congress elected by ordinary people. They want properly indoctrinated "experts," to tell the rest of us how to live.

 

[Rightguide]

Chevron deference has always excluded clear violations of Congressional intent by the enforcement agencies.

Then how did we wind up with pistol brace rules, reset trigger rules, and suppressor rules, based on the NFA Act, which doesn't allow for the criminal or taxing regulation of any of those things?

 

[Paul_Chance]

The executive branch isn't creating law.

You're incorrect there:

"A valid legislative rule is binding upon all persons, and on the courts, to the same extent as a congressional statute. When Congress delegates rulemaking authority to an agency, and the agency adopts legislative rules, the agency stands in the place of Congress and makes law.” National Latino Media Coalition v. Federal Communications Commission, 816 F.2d 785, 788 (D.C. Cir. 1987)."

https://crsreports.congress.gov/product/pdf/IF/IF10003

 

[ll74]

You're incorrect there:

"A valid legislative rule is binding upon all persons, and on the courts, to the same extent as a congressional statute. When Congress delegates rulemaking authority to an agency, and the agency adopts legislative rules, the agency stands in the place of Congress and makes law.” National Latino Media Coalition v. Federal Communications Commission, 816 F.2d 785, 788 (D.C. Cir. 1987)."

https://crsreports.congress.gov/product/pdf/IF/IF10003

Interprets ambiguous law. The executive branch consistently interprets law....always has. That is why immigration policies vary based on the administration.