Gorsuch confirmation hearing

[doorhinge]

@CarnalK

As a legal principle, “let whoever Fotheringay-Phipps agrees with decide the issue” is not very sound.

It is for Fotheringay-Phipps.

Just as "let whoever CarnalK agrees with decide the issue "is best for CarnalK.

[CarnalK]

@doorhinge

It is for Fotheringay-Phipps.

Just as "let whoever CarnalK agrees with decide the issue "is best for CarnalK.

No. I said as a legal principle not what either of us prefer.

[CarnalK]

@Richard_Parker

It might well be the judiciary’s god-given entitlement. That doesn’t change the reality that power would be flowing from the agency to the judiciary, and not from the agency to Congress as proponents would have it.

So you would agree with Scalia that Chevron deference is a bulwark against activist courts? Except when he decided to easily side step it by saying the agency’s interpretation is not reasonable.

I understand your argument and I agree that the agency’s interpretation should have some weight but I am a little troubled by a low bar of “if it’s reasonable, that’s the law”. Well, I am no legal type guy so I admit this could be a pretty clueless objection.

[Bone]

@Richard_Parker

I see the argument in the abstract against Chevron. Chevron allows agencies to enforce constructions of statutes that, while reasonable, aren’t the best or truest interpretation of congressional intent. But the actual effect is not to increase democratic accountability and the power of Congress; it’s to empower the judiciary, which is the least democratic of the branches.

I don’t see what it serves to pretend we live in a world in which Congress amends statutes when a court misinterprets them, which is the conceit at the heart of principled opposition to Chevron. That almost never happens. So it’s basically just a judicial power grab, wresting control of statutory interpretation from agencies that actually have some expertise and democratic accountability and reposing it in the hands of unelected, non-experts.

I don’t think it’s novel that each branch of government attempts to accrue more power to itself. In the case of being anti-Chevron, I think it’s appropriate. The branch that enforces the law should not be the same that interprets it - that’s a critical separation of powers. The legislative branch can easily undue the judicial interpretation by passing new law - the fact that they don’t may indicate that the sentiment to change it is not yet ripe. After Kelo, many municipalities state and local passed laws to limit actions that would be permissible under Kelo. So while I agree it happens quite infrequently, it can if the issue is sufficiently interesting to the legislatures (people).

Another downside of Chevron is that rules can change from administration to administration as they modify their interpretations, and that type of uncertainty is undesirable.

Chevron isn’t one of those things that determines whether a politician or judge is good or bad, though the discussion of the particular issues can shed light on the views of that person which I find interesting.

[Richard_Parker]

@Bone

The legislative branch can easily undue the judicial interpretation by passing new law - the fact that they don’t may indicate that the sentiment to change it is not yet ripe. After Kelo, many municipalities state and local passed laws to limit actions that would be permissible under Kelo. So while I agree it happens quite infrequently, it can if the issue is sufficiently interesting to the legislatures (people).

Yeah, that’s the premise I dispute. It’s super-rare. Much rarer than the actual incidence of courts getting it wrong, because of the inherent nature of how politics and elections work.

@Bone

Another downside of Chevron is that rules can change from administration to administration as they modify their interpretations, and that type of uncertainty is undesirable.

How so? I’m not clear on why Chevron leads to more regulatory changes.

[Bone]

@Richard_Parker

How so? I’m not clear on why Chevron leads to more regulatory changes.

If administrative interpretation changes from administration to administration, that creates uncertainty. Here is an example:

The Supreme Court ruled that the law was ambiguous — you could make reasonable arguments on both sides. And under Chevron, that meant the FCC got to decide the best way to interpret the law.

The ruling was an earthquake for the broadband industry. The FCC took it as a green light to deregulate telephone companies’ broadband services as well. That effectively put independent ISPs out of business, leaving us with today’s broadband duopoly. And it created a lot of uncertainty about how the broadband industry would be regulated.

Under Chevron, the Supreme Court said that the FCC is allowed to deregulate broadband, but it didn’t say it was required to do so. So under President Barack Obama, the FCC changed positions and declared that broadband is a telecommunications service — a declaration that allowed it to establish strong network neutrality protections. The courts upheld this decision under the Chevron principle. Now, Donald Trump’s FCC is likely to use that same discretion to dismantle Obama’s rules.

By deferring to the FCC, the Supreme Court created uncertainty about how broadband services would be regulated — uncertainty that has lingered to this day. Unless Congress steps in and changes the law, we’re now likely to see a big change in policy every time the White House changes hands.

So the nature of what telecommunications services is has the potential to change 3 times in as many administrations. I think that’s a bad thing.

[Richard_Parker]

I don’t see how Chevron affects the frequency of regulatory pronouncements or amendments.

President A passes new regulation on workplace safety. Supreme Court overturns it, saying it goes too far. President A passes narrower regulation. President B is elected and eliminates the regulation.

That can all happen with or without Chevron. How does Chevron make any difference?

[CarnalK]

@Richard_Parker

How so? I’m not clear on why Chevron leads to more regulatory changes.

I am pretty sure that Bone didn’t mean it would lead to more regulatory changes, just that those changes are more confusing with Chevron being the final word. I think you’d agree there’s no single “reasonable interpretation” in many cases. Imagine a case winding it’s way up the courts because of a certain interpretation. If the agency’s view is upheld, does that mean future administrations can’t switch to another reasonable interpretation? If the administration/agency interpretation changes mid court battle, is the lawsuit moot or should they continue and allow the Supremes to decide whether the last one was reasonable?

Well, that’s my question even if it isn’t Bone’s.

[Richard_Parker]

Regulations enforce statutes. Even if a statute has a very clear and definite meaning, the scope of possible regulations implementing it are still nearly infinite, and the subject of policy differences over the best way to enforce the statute. Moreover, whether any given regulation is within the scope of the statute’s meaning is always a question that has to be answered with respect to that particular regulation.

It’s true that under Chevron the binding meaning of a statute’s language can change from one administration to the next, but only by way of new regulations. With respect to certainty about the rules, there’s not really any difference in the binding meaning of a statute changing and the binding regulation changing with the statutory meaning remaining the same.

@CarnalK

If the agency’s view is upheld, does that mean future administrations can’t switch to another reasonable interpretation?

Under Chevron, they can switch to another reasonable interpretation. Without Chevron, they can still change the regulation, but they would be bound by any interpretation of the statute that a court has offered. I guess that might constrain the boundaries of change between administrations, but I don’t see that it affects the frequency of change.

@CarnalK

If the administration/agency interpretation changes mid court battle, is the lawsuit moot or should they continue and allow the Supremes to decide whether the last one was reasonable?

Sometimes courts say it moots, and sometimes they say it doesn’t. Depends on the whim of the court, unfortunately. That would be true with or without Chevron.

[CarnalK]

I appreciate the response, Richard Parker. I would quibble with:

I guess that might constrain the boundaries of change between administrations, but I don’t see that it affects the frequency of change.

In my non-lawyer experience, constraining boundaries does indeed affect how often changes will happen. When the changes are beyond the boundaries, people don’t go for it as often.

[Bone]

@Richard_Parker

Under Chevron, they can switch to another reasonable interpretation. Without Chevron, they can still change the regulation, but they would be bound by any interpretation of the statute that a court has offered. I guess that might constrain the boundaries of change between administrations, but I don’t see that it affects the frequency of change.

It’s that bound by interpretation that I am focused on. Under Chevron, administrative agencies have free rein to reinterpret as they did in the telecom example. If the court had simply interpreted the law to mean something specific the FCC wouldn’t be able to do this. And if the court’s interpretation is untenable for some reason, the legislature can clarify. That to me strikes a better balance and gives more certainty than rules that can change not by legislation but through the administration all on it’s own.

[Aspenglow]

@Sherrerd

Hearing Diane Feinstein’s summary of the case against Gorsuch, today, brought home (for me) the fact that Gorsuch is one ice-cold handmaiden of the One Percent.

He’s far to the right of Scalia. Some other conservative, closer to Scalia in his views, would be a better fit for that seat.

I’ve never been more proud of one of my senators, Jeff Merkley, who is holding and has held the floor through filibuster for the past 4+ hours on C-SPAN in his opposition to Gorsuch. He has been fearless in his legitimate criticisms of Gorsuch, Trump and the Congress. I wish everyone was watching.

[Bone]

More on Chevron -

Remember before King v. Burwell was decided, a lot of analysis was spent discussing the role Chevron may play in the decision. I think it was a reasonable position to take thinking that the case would be decided in favor of the administration under a Chevron framework. If this happened, the next administration would be free to reinterpret the availability of federal subsidies and torpedo the exchanges. This would have created great uncertainty, IMO. But in the actual opinion, Chevron wasn’t used:

This matters because King v. Burwell could easily have been resolved under the Chevron framework. The Chevron test has two steps: if the statute is clear, that is the end of the matter, but if it is unclear, the agency’s reasonable interpretation gets deference. In today’s case, the IRS had interpreted the law to allow federal subsidies in States with either State- or Federally-established health care exchanges. The Court could have reached the same result under Chevron in one of two ways. First, it might have held that the Affordable Care Act was unclear on whether federal subsidies would be available nation-wide and that the IRS resolved the matter reasonably by answering yes. The downside of this approach is that it would allow a new administration to change its mind and argue that their new approach, too, is reasonable and deserves deference. That uncertainty may have troubled the Court, which may have wanted to put this matter to rest once and for all.

But the Court easily could have avoided that problem by simply applying the Chevron framework and concluding that the statute was clear at Step One, and could be read only one way, to allow federal subsidies nationwide. The Court could have used exactly the same logic it ultimately adopted, which is that making subsidies available in all States is the only plausible reading of the law if the relevant statutory provision is read in context and in light of the Act’s clear purpose.1 But the Chief Justice took pains to say that “This is not a case for the IRS” but rather for the High Court, jettisoning Chevron in the process.

One might object that abandoning the Chevron framework doesn’t matter because the result is the same whether the Court reads the law for itself or concludes it is clear under Chevron. But this is only true in cases where the law is clear. The Chief Justice’s approach makes a big difference when the law is ambiguous. Recall that, under Chevron, ambiguity favors the agency. Without Chevron, the Court decides. So what the Chief Justice managed to do today is subtly to shift the balance of power in statutory interpretation back to the courts and away from agencies in the most contentious cases—precisely the cases where the law is not clear.

If Gorsuch is confirmed, I think he, Roberts, Alito, Thomas, and probably Kennedy may decide to overturn Chevron. And barring that, Congress can neuter Chevron if it chooses. Consider HR 4768:

This bill modifies the scope of judicial review of agency actions to authorize courts reviewing agency actions to decide de novo (without giving deference to the agency’s interpretation) all relevant questions of law, including the interpretation of: (1) constitutional and statutory provisions, and (2) rules made by agencies.

I’m not sure how likely that is to pass but it does show that Congress has the ability to make changes if it chooses to.

[HurricaneDitka]

@Aspenglow

I wish everyone was watching.

It’s C-SPAN, nobody watches that.

[HurricaneDitka]

@Aspenglow

He has been fearless in his legitimate criticisms of Gorsuch, Trump and the Congress.

Reading the headlines this morning, it looks like Merkley rambled on all night, for more than 15 hours. I’m not about to go listen to 15+ hours of Merkley speaking, but on the off chance he actually did say something worth hearing, I wanted to give you a chance to highlight it for me (and the rest of us I suppose). What are the most legitimate criticisms of Gorsuch that he raised? Could I get like David Letterman-style top 10? or a top 3 maybe?

[boffking]

How long do they have to filibuster? If there aren’t the 60 votes to break it, and the nuclear option isn’t used, when is Gorsuch’s nomination officially rejected?

[Iggy]

@boffking

How long do they have to filibuster? If there aren’t the 60 votes to break it, and the nuclear option isn’t used, when is Gorsuch’s nomination officially rejected?

If the Republicans cannot hold the votes to go nuclear then debate continues. Normally that would, for all practical purposes, kill the nomination once and for all. But things ain’t normal.

There has been another idea floated around, extending the legislative day to stretch over multiple calendar days. This is the Rule XIX solution.

… Under Rule XIX, each senator is allowed to give no more than two speeches on a given topic during each legislative day, which is distinct from the calendar day. Extending the legislative day over multiple calendar days, the Republican majority would let each Democrat who wanted to filibuster Judge Gorsuch speak for as long as he or she wanted to but would hold each senator to only two speeches on Gorsuch. Once all filibustering Democrats had given their two speeches, a vote on Gorsuch would commence; there would be no need for a cloture vote on the nomination because, under Rule XIX, no more filibustering senators could speak.

Two speeches each, multiply by 48 Democratic Senators, multiply by how long each Senator might hold the floor with each speech… That could take weeks. But it would leave the filibuster intact.

Running the numbers, if you take Sen Merkley’s 15 hour speech as how long each speech might last… that is 1440 hours of speeches, 60 straight days of non-stop speeches. But then a vote would follow with no need for cloture.

[HurricaneDitka]

@Iggy

If the Republicans cannot hold the votes to go nuclear then debate continues. Normally that would, for all practical purposes, kill the nomination once and for all. But things ain’t normal.

There has been another idea floated around, extending the legislative day to stretch over multiple calendar days. This is the Rule XIX solution.

Two speeches each, multiply by 48 Democratic Senators, multiply by how long each Senator might hold the floor with each speech… That could take weeks. But it would leave the filibuster intact.

Running the numbers, if you take Sen Merkley’s 15 hour speech as how long each speech might last… that is 1440 hours of speeches, 60 straight days of non-stop speeches. But then a vote would follow with no need for cloture.

Can Rule XIX be used on legislation as well, or just nominations?

[Iggy]

I’m no huge expert, but I do not see why a Rule XIX approach could not be invoked on legislation as well and nominations.

[Sherrerd]

@Aspenglow

I’ve never been more proud of one of my senators, Jeff Merkley, who is holding and has held the floor through filibuster for the past 4+ hours on C-SPAN in his opposition to Gorsuch. He has been fearless in his legitimate criticisms of Gorsuch, Trump and the Congress. I wish everyone was watching.

It was more than FIFTEEN hours, in the end! Truly a heroic performance.