They may as well be. If I were to sue my local fire department for requiring me to pay a bunch of money to move a couple of sprinklers around, the court would not find in my favor, citing Chevron as a precedent that the fire marshall may make that regulation.
If Chevron is overturned, then the court would follow that precedent, and allow me to keep my shop a fire trap.
It may require challenging each regulation one by one, but once the precedent is overturned, those challenges will become very easy.
You’re assuming that the court will follow precedent in the case of every regulation being challenged. I see no reason to make the assumption, since the current supreme court has shown time and again that it will happily ignore precedent to get the outcome it desires.
It’s entirely possible - I’d say likely - for the court to rule that THIS regulation (that prevents a multinational corporation owned by Clarence Thomas’s yacht buddy from dumping toxic waste into a river) is bad and needs to be struck down but THAT regulation (that prevents women from buying abortion pills) is completely fine.
I guess the question is, how many naked power grabs and precedent flip flops can the Judiciary get away with without losing its legitimacy, and what happens when it does?
I think we’ve seen the upper limit of what modern American society is capable of in terms of meaningful outrage. The Supreme Court can do what it wants. It will be campaign fodder.
Seems really hard to imagine that any part of the conservative project is going to engender more of a response than erasing Roe, and they did that at cruising speed, in retrospect.
Regulations are not really something that can be promulgated on a whim.
The administrative procedures act gives several elected officials an effective veto on any regulation that is proposed to be published in the code of federal regulations. There are several procedural safeguard to prevent runaway regulators, including public hearings and comments
The fact that some letter rulings (that can ONLY be relied upon by the recipient of the ruling) are being withdrawn has nothing to do with Chevron. Agencies issue a shit ton of guidance that is not subject to chevron deference. For example, the IRS publishes a shit ton of revenue rulings, private letter rulings and notices every year. NONE of these things receive “chevron deference” Only those regulations that have gone through the hurdles set up for promulgating regulations are beneficiaries of chevron deference.
A letter ruling by an agency (e.g. BATFE) to a single addressee is not a regulation. It is a letter ruling and noone else in the world is entitled to rely on that ruling. And those rulings can be revoked at the discretion of the agency. They cannot do so arbitrarily or capriciously (and you would have a cause of action under the administrative procedures act if the revocation was arbitrary and capricious). We can start a thread about those letter rulings if you want, I had one for my AR pistol with forearm brace and that letter was not a regulation, but I did get a free sbr registration out of it. Revoking a regulation is almost as complicate as promulgating it in the first place.
Getting rid of Chevron deference would be so crippling to the US economy and people’s every day lives that congress would be forced to codify it.
Even beyond the scope of what would be required to ensconce every regulation in statute law, Congress at large does not have the specific expertise to comprehend complex technical and regulatory frameworks. Hell, many members of Congress often appear barely conversant with the law in general despite the fact that a third of representatives and more than half of senators have law degrees. There was once a specific Congressional agency, the Office of Technology Assessment, which produced detailed technical information curated for a non-technical audience. However, OTA was shut down in 1995 as an implicit part of the “Contract With America”, and Congressional Research Service, while a valuable source of non-partisan general research for Congresspeople (or, at least their staffs) to review and reference, is not constituted to do research into highly technical issues. Agencies such as the Environmental Protection Agency, Occupational Safety and Health Administration, Federal Energy Regulatory Commission, National Resources Conservation Service, Food Safety and Inspection Service, Nuclear Regulatory Commission, National Nuclear Safety Administration, et cetera all oversee and regulate industries that nobody who lacks an advanced STEM degree and professional experience is qualified to draft and interpret regulation. The idea that Congress should do all of this (more more realistically, that the federal government should do none of this) is ridiculous on the face of a managing the interests of public welfare and safety versus highly complex technical industries, notwithstanding how absolutely compromised by political interests such an effort would be. Regulatory and service agencies provide a continuity which is at least aspirationally insulated from the vagaries of political winds.
I think the answer to that is win more election.
Appeal to a broader swath of the electorate an ignore the trolls at the extremes that are almost deliberately riving away moderate voters.
That’s a good point. There is a ton of shit you don’t want politicians to chime in on because things like setting nuclear safety standards are probably better left to experts than a barista from queens NY or a fitness instructor from north central Georgia.
I would be willing to concede that there is a (hypothetically) principled conservative objection on those grounds, though. If a subject is truly beyond the ken of a Congress member, why are they regulating it in the first place? By delegating to an agency and articulating the scope of the agency’s job, they are “chiming in” on these issues. As Stranger said, the implied conclusion, of course, is that the government shouldn’t be involved at all, so whether it’s an efficiency argument or a competence argument, the outcome is the same.
But in theory, Congress could convene hearings and be educated on those technical matters prior to issuing their own regulations. The would-be heads of the agencies could just come to a hearing and read off their CV and then say “and that’s why the permissible benzene threshold should be 1 ppm, not 10, Ms. Boebert.” I wouldn’t concede that Congress doesn’t possess the theoretical capacity to understand the issues under regulation, it’s just that it’s impracticable for them to spend that much time on every issue.
Of course, I would say that, because I’m a lawyer, so I believe I become a technical expert on every issue by arguing about it enough.
This was probably a decent idea in 1788 when the scope of the federal government was fairly limited and representatives didn’t need to make many decisions that required specialized technical expertise. Unfortunately, we are trying to run the modern country by the same rules, which is like trying to control a nuclear aircraft carrier with driving reins and a buggy whip.
The entire system is a political failure. It allows the law to be changed on a whim from just one politician. First it was Trump with bump stocks, now it is Biden with pistol braces. Nothing has changed about those devices that were declared legal for decades. It isn’t the same as, say, the FDA discovering that an approved medication has been discovered to have previously unknown side effects.
The same could be said for the debt ceiling and that is not a slam dunk either. It may not be easy getting Republicans to put the interests of the country over their own and vote for a bill that their primary opponents would portray as “Sentor X voted in favor of keeping over 88 thousand regulations on the books, including (insert unpopular regulation here) we need a senator who will stand for freedom not another politician who will cram government down your throat.”
I don’t think they will actually default on our public debt and it is grossly irresponsible and hypocritical of Republicans to pull this shit only when a Democrat is in the white house.
I know that the court has already carved back a bit on Chevron but I don’t think they will get rid of it altogether.
Because the idea behind Chevron deference is that a formal process equivalent to law-making has taken place. The more informal the process that leads to a particular decision, the less likely it is to get deference. Although I’m not sure why you would want it to be entitled to deference.
Because the administrative procedures act required a shit ton of things before a regulation gets recorded in the code of federal regulation. There has to be public notice, public comment, public hearings, notice to the executive and legislative branches giving them an opportunity to put the brakes on the regulation. Then and only then does it become a regulation that is entitled to Chevron deference.
Your letter was just some bureaucrat giving you his opinion and binding his own agency to honor the letter but that letter can be rescinded at any time (with some due process). If for some reason it becomes a court case, the courts do not have to consider the letter at all. They can decide that you actually have a sbr and entirely ignore that letter. The letter binds the agency, not the courts. Chevron deference meant that while regulations didn’t bin the courts, the courts gave great deference to regulations.
Okay, let’s say some company starts producing a new product, and as part of this process, is releasing a chemical into the environment. This is a novel chemical, not one that is currently regulated.
For a while, no one notices or cares, but it starts showing up in various places and starts being linked to disease or even death.
Do we want an agency like the EPA to be able to add this chemical to the list of regulated chemicals, or do we want to wait for congress to pass legislation to specifically regulate this chemical?