I posted earlier on the significance of the Texas abortion pill case with respect to federal regulatory authority. The Supremes have chosen to accept another case with potentially wider implications.
Chevron is well established precedent regarding permissible regulatory action. I don’t want to sound alarmist, but there are few more settled principles of administrative law than Chevron. Is this on anyone else’s radar?
Would you be so kind as to summarize the case in question?
Generally Congress passes laws which the bureaucracy administers.
Chevron basically says if legislation is ambiguous, courts should defer to bureaucracies’ reasonable interpretation. It is a pretty basic element of how federal law is interpreted and implemented.
Summary: The Chevron decision gives Federal agencies (e.g. the FDA) the right to read the legislation that creates their agency up to the widest interpretation on any element that is slightly ambiguous, when it comes to their abilities to create and enforce regulations.
Yes, it’s on my radar. If they’re taking it up after Dobbs then that’s almost certainly a sign that the Republican wing thinks that they can smash it.
I have to imagine that Congress is very fearful of this. For all hell to not break lose, they’ll need to pass a law that explicitly grants the same right that Chevron did. But, likewise, that will be very difficult to accomplish, politically. Unless the House flips, it’s probably not going to happen and that means that hell will break loose.
The Republicans of the moment all seem to forget that all the hate dumped on China, for Covid, basically amounted to complaining that they didn’t have strong enough regulations on animal and/or research disease handling.
While I’m sure that there are lots of silly regulations out there, I expect that most of them are pretty common sense. “Don’t put a tank of gas on top of your stove burner”, etc. Dropping the enforceability of all of those might end up being quite the catastrophe.
And, short of passing a law that endorses the Chevron decision, that basically leaves it up to Congress to individually endorse/drop tens of thousands of regulations. Going through it all, to yea or nay, will be a slog of unimaginable proportions.
Oh for the good old days when Supreme Court cases and legal debates were the provence of Great Debates instead of Politics and Elections. But given the partisan hackery of the current court, it’s hard to argue its not all politics.
And J. Brown Jackson will recuse herself.
Let’s just tear the whole thing down, huh?
The whole point of governmental agencies is that they see to the details that the legislature has neither the time nor the expertise to deal with. Overthrowing Chevron would be equivalent to overthrowing the very concept of governmental agencies. Republicans today aren’t just talking about drowning it in the bathtub; they’re actually attempting it.
The problem is, those agencies are susceptible to outside influence in a manner that evades the intentions of congress.
Case in point: I have stacks of letters, briefs and rulings from the BATFE declaring that “bump stocks” and like devices did not make a firearm a fully automatic weapon and were perfectly legal. These multiple decisions by BATFE goes back decades. Trump bullies them a bit and voila, a complete 180. The devices are made illegal. A major law changed by one person and Congress (the will of the people) bypassed. Hundreds of thousands of American citizens have to destroy or surrender legally purchased property with no just compensation, or risk becoming federal felons.
And Chevron allows for this which is why I oppose it.
Yeah, but your example is a political failure, not an indictment of the entire system.
We want (need even) agencies to me able to adapt and change to new information and conditions at a pace much faster than what congress can do.
Better to be able to have experts impart their knowledge on dedicated people focused on the task of making regulations relevant than to make them convince the likes of Marjorie Taylor Greene or Mitch McConnell of the necessity of their proposals.
If you think regulatory whims are arbitrary now, can you just imagine what would result if they became a source for political bargaining and grandstanding by congress?
So, is the implication that regulations cannot go further than what’s in the legislation?
This impresses me as a pretty accessible discussion of what non-lawyers might perceive to be a complex legal issue.
Some people feel the “permanent” federal bureaucracy has too much power. That unelected career bureaucrats have too much say in the formation, interpretation, and application of laws. Approaches such folk advance range from narrowing/eliminating entire bureaucracies to making agencies subject to political (Presidential) control and influence.
IMO, such people often desire decreased regulation or corporate interests. Each person can decide whether that is a good or bad thing, or the extent to which other concerns ought to be weighed against corporate for-profit motives. Also IMO, Trump waged a pretty aggressive war against the federal bureaucracy, and each person can opine how well that went.
IMO, Congress lacks the resources and expertise to effectively do all that is needed through legislation. In case you do not realize (VERY GENERAL DESCRIPTION FOLLOWS), Congress enacts laws which are codified in the USCA - US Code Annotated. Take any Act of Congress you can think of - the Environmental Protection Act, the Patriot Act, the Social Security Act - it apears in the USCA. While most such Acts are quite lengthy, and can contain very specific provisions, in no way are they entirely comprehensive. They do not explain exactly how every provision is to be applied and enforced in every case, by whom, and by what process. They will generally contain a provision such as, “consistent with rules/procedures promulgated by the Secretary/Commissioner of xyz.”
Then the appropriate Agency promulgates rules for applying the provisions of the Act. These are contained in the CFR - Code of Federal Regulations. The CFR is quite lengthy, and gets down to the specifics. Generally speaking, Agencies make rules through notice and comment. They publish proposed rules in the Federal Register and invite comments from interested parties. Then, they publish their responses to the comments, and the final rules.
Based on your assessment of how well Congress works, you can make your decision as to whether Congress can/should perform this function.
Presidents appoint several persons at the top of most federal Agencies/Offices, but the vast majority of Agency employees are career civil servants. The political appointee has some considerable influence as to what Agency functions are stressed, but a HUGE part of what the Agency does simply goes on the way it always has been done, until the applicable regulations are changed.
Sorry if this is too long. Just wanted to give a quick assessment of my views and experiences as to how US federal Agencies work, and why some people feel it appropriate/desirable/necessary that they be afforded deference.
I am sure that Chevron is gone, and I’ve been expecting them to get around to it eventually. Their worldview on this stuff is all laid out; the only thing people think is going to stop them from imposing it is their own subjective expectation that really big changes don’t happen. People were surprised about Roe v. Wade, they’ll be surprised about Chevron. But this is the project. Kavanaugh straight up promised he was going to make liberals pay.
There was a brief window in 2020 and another last year where it seemed like people appreciated the stakes, but then they mostly went back to the status quo and now are going to be surprised again. It’s really bleak.
Oh, no! Now I can’t modify my semiautomatic weapon to spray death and destruction without having to repeatedly pull the trigger! Whatever shall I do?
This is actually a FANTASTIC example of the benefits of adjusting regulations without going through the legislative process. There’s absolutely no benefit to bump stocks being legal; the agency was able to recognize this and amend its rules without jumping through endless beaurocratic hoops.
Of course, drugs are mostly made illegal under the same framework. I suppose that people who are clamoring for this to be repealed are also looking forward to having meth be legal.
Trying again while avoiding the bait.
This is actually a FANTASTIC example of the benefits of adjusting regulations without going through the legislative process. The agency was able to evaluate the benefits and harm of bump stocks and amend its rules without jumping through endless beaurocratic hoops.
Taking a crack at a plain language summary here in addition to a lot of the good information that’s already here, because it is important, and administrative law is notoriously eye-glazing:
Basic rule: only Congress can make laws; the constitution says you’ve got your executive, your legislative, your judicial branches, and none of the three branches get to do the other branches’ jobs. Regulating private affairs is a Congress job.
Problem with basic rule: the country’s really fucking big. Congress can’t make a new law for every possible little situation that comes up that requires the government to do something. Takes too long, and too many problems that need attention.
Possible solution to problem with basic rule: administrative agencies, like OSHA, the EPA, and the aforementioned Social Security Administration and ATF (kinda). Congress “enables” an agency by passing an act, which gives some of Congress’s power to the agency for specific purposes. Congress is still the one passing the law, but they are delegating the details to the agency, which is not Congress, but usually a part of the executive branch. So maybe Congress writes a law saying “the SDMB Agency now exists, and it is going to make rules for getting rid of trolls.” It doesn’t have to say all the details of how that will work, it just says the new agency will handle it.
WTF is Chevron: a case that said if Congress leaves it up to them, an agency is allowed to decide for itself how to do its job, within reason. If the SDMB Agency is being reasonable in interpreting the “get rid of trolls act,” a court won’t come in and say no, you can’t do that. This is usually called Chevron “deference;” we defer to the agency interpretation as long as it’s reasonable and it’s not something there’s a super important reason Congress needs to do itself. If Congress decides it doesn’t like how the SDMB Agency is doing its job, it will say so, we assume, so if that never happens, then let them handle it.
Long story short, if Chevron deference goes away, there could be thousands of lawsuits about OSHA regulations and EPA regulations and all of these rules that companies don’t want to follow, and courts could just say they think the agency is doing a bad job. All of those regulations would need to be specifically passed by Congress in detail, which would effectively mean they would no longer exist, since they wouldn’t.
I agree with your analysis overall, but with one caveat. It seems to me that rules created by agencies would only go away if a court strikes them down, which means that (since Congress won’t bother to pass specific laws or manage to vote them in successfully if it tried) we’re just moving the power away from regulatory agencies and to the courts.
So while it’s true, as pointed out above, that drugs are banned by the same process that bump stocks or various means of pollution are banned - these rules won’t all automatically become invalid. Instead, the court will get to arbitrarily decide which regulations to uphold and which to strike down.
In other words, the court is seizing legislative power away from the regulatory agencies that Congress delegated these powers to, and taking it for themselves, under the guise of returning the power to the legislators (who, the courts know, will not actually wield that power effectively).
This seems to me like a naked power grab by the Judiciary, which has already put aside all pretense of political neutrality.
Yes, that’s right. They effectively don’t exist in that if a Fed Soc plaintiff doesn’t want to follow them, they’ll get them struck down, but not a regulation that Gorsuch likes might survive, if there are any.