Sure that happens but AFAICT most regulations are in the “clarify ambiguity” category.
For example, how do you tax bitcoin gain.
We tax gains from currency gains differently than assets and different categories of assets have different tax regimes. People just wanted clarity and waiting for congress to act seemed unwise. So the IRS came up with a reasonable interpretation of the tax code and promulgated regulation. It made sense and worked out reasonably for most people but some people wanted bitcoin treated a different way because it worked well for their particular situation. They could sue the IRS an say they got it wrong but the courts will look at the law, look at the regulation and if the regulation seems like a reasonable interpretation of the law, they will go with the regulation.
True, but I’m talking about the case where an agency regulates something that previously was not regulated.
Point is, prior to it being regulated, it was thought to be benign. Once it was learned that it was not benign, it gets regulated. This leads some people to complain about an agency making something illegal that used to be legal.
When the point is that it should have been illegal in the first place, and it was a combination of oversight and a belief that people would not use it if it were harmful that left it legal until it started causing harm.
The whole point of the government creating agencies to manage things was the understanding that congress simply cannot and does not want to be in the business of regulating every individual thing. They could not possibly manage to stay abreast of all the things that need regulating and pass a law for each one.
So, we got the regulatory agencies which are experts in their field and understand what needs to happen better than congress ever could. That republicans are trying to dismantle them is alarming and will not make for a better country. We have seen what lack of regulations result in and it is never, ever good for the population. Only good for the company’s profit margin.
More to the point, congress has oversight of these agencies already. If an agency interprets a law in a way congress does not like then congress can change that. I see little to no need for the courts to step in here.
Will have to see how aggressively the courts undertake this review. If you do not regularly interact with federal agencies, you might not appreciate how potentially significant this may be.
The SCOTUS this week has now overturned Chevron and said that administrative agencies must give people the right to a jury trial before fining them.
So even if this stuff does get sorted out in a reasonably good way we are going to need a TON more judges. And even then it is almost inevitable that the best case scenario there’s still a much longer time to wait for administrative agencies to take action.
And this is why the GOP has moved heaven and earth to appoint as many hard-right judges as they can at every level. They don’t actually give a shit about abortion, or immigration, or freedom of speech, or hard-workin’ Americans, or any of the 101 culture war memes-of-the-week that motivate their voters. Those are all just a means to this end: disemboweling regulations.
Well guys I guess environmental, health and safety regulations are now entirely optional. What are the chances of getting 60 senate votes to prevent Houston from becoming the next Bohpol (which coincidentally was the same year Cevron was decided). On the good side I see a new industry in clean bottled air for those who can afford it.
I’m guessing that if Trump gets a second term, people on the left are going to be happy that Chevron is no longer the law of the land. Trump’s admin agencies had a lot of not great readings of the statutes. For example, I work for the DOL, and Trump’s appointees decided that offering ESG funds violated the fiduciary duties of 401k or Pension Plan fiduciaries - because you were deciding something was more important making the most money for participants and beneficiaries. It is actually a reasonable reading of the statute, and under Chevron, the courts would have had to give deference to it.
I think people forget what happened during the Chevron case - it was an environmental group who sued because the Reagan administration EPA interpreted the statute broadly so that factories who wanted to expand their footprint didn’t have to go through extra EPA review (something that had to be done since the EPA was passed). Chevron allowed the Reagan Administration’s broad viewpoint of the EPA to be given deference (against what, IMO, was the intent of the statute).
The common argument by folk opposing deference to Agencies is that Congress simply ought to spell everything out more clearly, rather than leaving interpretation and implementation up to an unelected bureaucracy. Good luck with that!
IMO, many people disfavor specific rulings and regulations that they personally disagree with, while blithely remaining ignorant of the countless similar rulings and regulations that support their comfortable, healthy, and profitable daily lives.
The administrative state existed prior to Chevron and I think there will be some new regime allowing deference to administrative agencies in some ways. I think there are probably two big things that will happen. First of all there’s going to have to be a big transition to how the admin. state works, and the transition and period of uncertainty period might look a lot like deregulation. Second, I think Trump or a similar demagogue is just going to do the same stuff as though administrative agencies have the maximum powers and just wait until our clunky (possibly about to get clunkier) court system catches up, while any normal president, especially one that is trying to set lasting regulations like democrats typically do, is going to be more cautious, so there will be a tilted playing field.
But the whole purpose of this is to make abortion pills illegal, not to make disallowed drugs legal. Can you imagine the chaos if all drugs approved by the FDA now had to be voted on by Congress? They could outlaw all vaccines and the Pubs probably would.
The problem is that in most cases the government can’t act without the courts. If the EPA concludes that regulating runoff of microplastics fits under their mandate for clean water, how do they get companies to reduce their emissions by executive order without a getting the judiciary involved.
I think this is also going to be a massive headache for industry. Right now if an industry is unsure as to whether or not they are in compliance with an ambiguous regulation they can just call up the agency and find out. Under the new regime they can’t know for sure until they are sued and get to hear what the court says at which point its a bit too late.
Yeah, that makes me LOL (as the kids say). The reason why agencies have had to be more expansive and prescriptive in their rulemaking is because Congress has declined to spell out the details of the legislation they pass. And that’s not going to change, because the way you get bills passed is by papering over differences and being vague about controversial implications.
A question to the legal folk. Is there a way around this if congress specifically includes in their legislation that the statute is meant to be determined by the relevant agency? Something like “The EPA shall be granted the ability to levy fines on the emission of carbon, the amount and extent of those fines and what they cover shall be determined by the agency.” except with more legalese.
IMO even the for the best version of congress it would be a nightmare to have to make regulatory calls the way administrative agencies do at least now. Any time they discover new evidence of a possible harm or a method people were using to work around the existing regulations they’d have to pass new legislation which would probably end up occupying a significant amount of legislative business. And ultimately it’s not possible for lawmakers to be experts in every type of thing that the federal government does while also doing the rest of what they do – they would wind up farming out the writing of the legislation to (hopefully) trustworthy experts.
Well, and, it simply isn’t reasonable to expect more than a handful of members of Congress to understand these esoteric, technical, and wonky things. Most humans on earth couldn’t pronounce “Pharmacokinetics” much less write regulations on it. And that’s not a criticism.