Source: https://www.aclu.org/documents/constitution-100-mile-border-... - second point above the fold.

Chevron is an American tragedy. It's fixed and should be fixed forever.

No, it did't. The regulations were approved in 1953 and upheld in 1976 ( https://supreme.justia.com/cases/federal/us/428/543/ ), before the Chevron deference.

> Chevron is an American tragedy. It's fixed and should be fixed forever.

Chevron deference is the reason the US works at all. Without it, we'll get back into a morass of endless lawsuits that stop any improvement.

I'll see you in a few years with the outcome of this prediction, but I'm personally not a big believer in single pillars that hold up entire 350-million person systems. It tends to take quite a few pillars falling out to lead to the kind of chaos you're predicting, even saying that Chevron was a pillar and not just a particular way of doing things.

They don't have expertise in evaluating scientific studies or the fields those studies cover at all. At best they can decide who they believe more and there's an endless well of industry backed experts available to preach the company line. It's also far less predictable because the outcomes will be massively different depending on the judge involved. It'd be circuit split city if all the cases we're going to be filed in the 5th which is wildly pro business.

> short-lived experts appointed by an executive who cycles out the rules every four years

That's not what happens though, the rules are relatively stable and have legislatively required notice and comment periods where industry can challenge and prepare for coming rules. And once in place they generally remain the same because there's the same process for removing the rules as creating them. Congress also has the ultimate power over these as they can directly write new laws addressing over reaches as they find them.

Background in one space does not translate at all. We absolutely do not want judges to be on the same level as experts in any field. They are not, and will never be, equivalent to people who are educated in a given space. People spend years and decades of their lives becoming experts in a given space, they cannot be replaced.

It's not as if judges are bound by expert testimony.

Our current congress barely passed 27 laws last year.

You don't. You force Congress to obey the Constitution, and if that means the scope of the law has to be drastically scaled back so that Congress can manage it the way the Constitution says it's supposed to, good. We have far too many nanny state laws anyway that do much more harm than good.

Is it? What if your profitability depends on using a polluting substance, like PFAS, and not cleaning up after yourself?

> Companies who actually have to survive in a free market won't do it for that reason.

Bullshit. We have _many_ examples of the opposite. Remember the whole leaded gasoline hearing, for one. Or the resistance to lead and asbestos phaseout.

Moreover, the "free market" _forces_ companies to do that. After all, suppose that you're a responsible company, and you spend money on installing expensive scrubbers for your wastewater to remove PFAS. Your less-responsible competitors will then outcompete you because their product is cheaper-priced.

That's why you need laws that force _everyone_ to become equally less competitive by not poisoning people.

Your environmental example is equally bad even when people have easy direct damages they can show like the Exxon Valdeeze spill the cost of litigation is massively skewed in favor of the company who can afford to drag cases out for a decade or more until the plaintiffs simply run out of money and have to take a smaller settlement. It's even worse with a lot of pollutants where the effect is more minor but drastically worsens a person's life but happens to so many people it's in aggregate a huge cost. Usually those take the form of an increased risk or prevalence of disease and the company gets to argue endlessly about their culpability for poisoning people because it's hard to prove the negative that they wouldn't have gotten cancer/breathing problems/etc in the absence of the pollution...

[0] to allow long term profitable companies to weather short term undercutting by larger companies who can take the losses to kill a competitor for example)

Ronald Coase would beg to differ.

The free market has never existed on a wide scale, so no company currently has to survive in a free market. It is a thought experiment and in practice regulated markets are far superior because the market is a pretty bad governor for society. Further, to have a free market you need perfect transparency, a state which is not realistically possible to begin with but if it were possible would only be achieved through regulation, such as disclosure requirements.

In that free market, by the way, companies absolutely will poison the air and water, in large part because people do not make purchase decisions based on downstream externalities. Even if they did, they won't be able to prove the company poisoned the river and the company won't be breaking any laws so a lot of people will simply allow it to continue. Now if the products themselves were poisonous, it's possible, but historically this just led to merchants moving from town to town to poison new people who hadn't heard of them.

>The reason companies do nefarious things is government interference in markets, insulating companies from competition.

This is so ridiculous I am not sure you're serious now. Are you just trolling?

But...

> This is so ridiculous

It is? Aren't you saying the same thing?

Despite the "state of nature" being theoretical, you wouldn't say that the reason people harm eachother is because of government regulations, would you? Of course you wouldn't, because you can think of a lot of reasons for people to harm eachother absent government regulation.

See? You can say that the complete absence of social structure is a theoretical state and also say that the presence of government and social structure is not the sole cause for conflict.

First, I didn't say "conflict"; my statement was much more specific. Second, companies are not people. Companies are tools that people use. Some people misuse them.

Perhaps it will help if I rephrase: the reason nefarious people can use companies as tools to do nefarious things on a large scale, the kind of scale that affects a large number of people, is government regulation.

>the reason nefarious people can use companies as tools to do nefarious things on a large scale, the kind of scale that affects a large number of people, is government regulation.

You are wrong. Companies do nefarious things on a large scale and would even at peak efficiency in a free market because it is more efficient to cause harm than it is to take steps to prevent it.

Looking back to less regulated times in the US may be illustrative.

When there was no government regulation for river cleanliness, companies routinely polluted the rivers. They did not do this because of the government regulation that, again, did not exist. They did it because it is a lot cheaper to dirty a river than it is to install the mechanisms to keep it clean, and the benefits to the company from keeping the river clean, barring regulatory oversight, do not suffice to balance the scales.

Similarly, in countries with less stringent regulations companies pollute and cause widespread harm.

The acceptable level of pollution in a free-market system is much higher than the desirable level, because until a tipping point where the company's sales are impacted they will continue to pollute. The equilibrium point is lowered through regulation. That's literally what it does.

Since when?

Do you twiddle your mustache and snicker maniacally as you think up these specious arguments? Or are you parroting them from those who do?

Neither extreme is ideal. What we should really have is congress passing laws that specify scope of authority and agencies that have been granted enough leeway to do the job effectively without having the power to effectively create law completely outside the balance of powers.

One can say the same of any individual change, but it is hard to look back at recent, oh, I don't know, let's say decades, and to think that they have not represented, for better and for worse, fundamental changes in norms and modes of existence, in the US and worldwide.

Oh, don't worry. Republicans are undermining the other pillars. The judicial system is already strained, and if Trump wins, it'll collapse completely.

And unfortunately, the effects won't be visible immediately. It'll be like the US healthcare system: steadily growing more and more expensive, decade after decade, due to systemic issues.

Granted, it's not the judiciary who will really suffer, it's the people who use the judiciary as their wait time skyrockets. The pillar might not fall, but people are probably going to fall off of it.

"Resilient" in the sense of keeping itself going, and the politicians who benefit from it in office, yes. That doesn't mean the government is actually doing a good job at what it's supposed to be doing according to the Constitution.

We the people, on the other hand, I think are indeed much more resilient than the "elites" give us credit for being.

Do you consider a flat earther's perspective to be equal to a scientist's?

This comment exemplifies the kind of unthinking elitism that landed us with Trump in the first place. You treat half the population of the United States as non-persons whose perspective you can't be bothered to even attempt to understand and then you're surprised when they elect an extreme candidate rather than try to engage with you?

Beating a straw man is easy but doesn't accomplish anything.

We will have to fix the judiciary as well, as they can just undo anything the legislative or executive does through judicial review and activist interpretation. There are no repercussions for doing so, as there are lifetime appointments.

Depends on your definition of "works". It is true that many agencies would find it much harder to fulfill their current functions. But many of those current functions are not things that should be done anyway, at least not by the government.

Also, the entire apparatus of the administrative state, with executive branch agencies issuing regulations that have the force of law, is arguably unconstitutional: Article I of the Constitutions say that all legislative power shall be vested in Congress, and does not allow Congress to delegate it. The justification given by the government, and accepted by the Supreme Court in Hampton Co. v. United States, was that it is ok for Congress to delegate lawmaking to executive branch agencies as long as it gives them an "intelligible principle" to guide them. That is one of many examples of Supreme Court decisions that have no recognizable basis in the Constitution.

The rule-making process is extremely heavy-weight and slow. On purpose, so the public can comment and challenge the rules at multiple checkpoints. And for most of the routine regular rules (not something "big" like Net Neutrality), the comments are treated seriously.

So now imagine that EVERYTHING has to go through the Congress. Congresscritters don't have expertise or time to evaluate and argue each individual point of regulations. So they'll be bundled into omnibus bills, prepared by shady lobbyist groups. There will be no way for you to influence them, especially if your local Congresscritter is not on the relevant committee.

And again, even with Chevron deference, the Congress can easily override any regulation by passing a law.

No, it isn't, because if Congress is forced to make laws itself, like the Constitution says, it will have to drastically scale back the scope of the laws it makes so it is manageable, and that is a good thing. We have far too many laws as it is. The law needs to be drastically scaled back so it only does what it's supposed to, and is not used, as it is now, as an instrument of ideology and failed social policy.

Yes, and it can make a law saying: "I delegate the tasks within this area to this agency".

> We have far too many laws as it is

The US actually doesn't have too many Federal laws. Other large countries have a similar number of regulations.

> The law needs to be drastically scaled back so it only does what it's supposed to, and is not used, as it is now, as an instrument of ideology and failed social policy.

Can you provide examples of that? Most of the current laws deal with mundane rules and regulation. Like food safety or construction standards.

No, it can't. Article I of the Constitution says that all legislative power is vested in Congress. It does not allow Congress to delegate anything that involves making laws. Agency regulations have the force of law, so they are laws as far as the Constitution is concerned, and are supposed to be passed by Congress according to the process given in the Constitution.

> Other large countries have a similar number of regulations.

That just means other countries also have too many laws. But more than that, if other countries want to have too many laws, that's their problem. They don't have the same Constitution the US does. The US Constitution was intended for a country that did not want a large body of Federal law micromanaging all aspects of people's lives.

> Can you provide examples of that? Most of the current laws deal with mundane rules and regulation. Like food safety or construction standards.

Food safety and construction standards are examples of ideology and failed social policy. The fact that we all want our food to be safe and construction to be done properly does not mean the government should be making the detailed rules for how those things are done; but our government has chosen to do it anyway because of ideology and failed social policy. In fact having the government do these things is a detriment to those goals, not a help. We have huge factory farms pumping food animals full of antibiotics because of government regulations that favor that kind of farming, not because it makes our food safer; it actually makes our food less safe, but government food safety inspectors watch it happen all the time and do nothing. We have a construction industry full of outdated building techniques and with costs much higher than they need to be because of government regulations that favor builders over their customers and discourage innovations.

Can you cite that article?

> That just means other countries also have too many laws.

Yeah. And only free-market fundamentalists know better. And when somebody points out the consequences of their actions, they always tell that the consequences are caused by "the government". And that it was not a true free market, because the True Free Market is (by definition!) always perfect.

Examples: historical USA, China during 2000-2020-s, Africa right now.

> Food safety and construction standards are examples of ideology and failed social policy.

Yeah. No.

> We have a construction industry full of outdated building techniques and with costs much higher than they need to be because of government regulations that favor builders over their customers and discourage innovations.

You know, here's an anecdote for you. Wood-frame houses in Russia are almost impossible to sell, even though they are cheaper and better than houses constructed from concrete blocks. Do you know why?

Because you can't easily inspect the quality of construction, as all the critical elements are hidden inside the walls. And there are no mandatory state inspections of houses in Russia, so anyone can build houses however they want. And wood-frame houses are often built by companies that are straightforwardly incompetent and/or cut corners during the construction.

The end result? People are spending more money to be sure that their house does not rot in 3 years due to incorrectly installed insulation.

If we could count on companies to act at all for ends other than short term profits maybe we could have less but alas that's far from the case and we have endless examples of what happens the moment they find a way to rack up massive short term profits because a regulation has been loosened because "well we haven't had that kind of failure in decades!".

We know what companies will do without laws around worker rights and safety protections. We know what they do without food safety rules. We know what they do without any anti-monopoly laws (and they're redoing it now under the toothless version we've been gifted by the courts). It's all bad for anyone except the owners and bosses.

We can for many companies, because many companies are small businesses that are run by their actual owners, who have an incentive to think long term.

The companies for which we can't are companies who are run by non-owners and whose owners--the shareholders--have little or no effective control. Such companies generally would not exist in an actual free market, because they are so inefficient. They exist in our current society because of the huge costs of compliance with government regulations, which protects very large companies from competition, particularly if they can get into the business of being government contractors, as most of them do.

> We know what companies will do without laws around worker rights and safety protections. We know what they do without food safety rules.

We do know these things, but what we know is not what you are implying. The narrative that big bad companies in a free market do all these bad things is a myth. The companies that did them were only able to do them because they were propped up by governments and insulated from competition. For example, the coal companies that exploited miners had exclusive mining rights granted by governments. The railroad companies that exploited workers had exclusive rights to key railroad routes granted by governments.

> We know what they do without any anti-monopoly laws

Yes, we know that too: they provide products and services of higher quality, and a lower price, than their competitors. Then their competitors complain to the government about anti-trust violations and the government breaks up the companies, resulting in higher prices and lower quality products and services.

In cases where there actually is an argument for the "monopoly" company serving customers badly--for example, Microsoft--the government does not break the company up for anti-trust violations. Instead it does some show lawsuits that have no real impact.

You clearly have not studied the history.

Less effective at messing things up, yes. You left out an alternative: corporations don't get government favors so they actually have to satisfy customers to stay in business.

The government needs to be able to solve market failures in a timely manner.

And? How is Chevron deference (from 1984) is to blame?

The case was decided on Constitutional grounds, without any deference needed.

> Searching cellphones and seizures only started in the 2000s.

I'd have been surprised if DOJ started doing cellphone searches in 1953.

> Your counterpoint is outrageous.

You failed to make your point about the border searches. They are not connected to Chevron deference in any way.

Oh, and you are clearly clueless about CBP. Before 2003, its duties were done by the DOJ (INS), and USBP.

USBP existed since 1924, INS since 1933.

The Chevron deference has always seemed to me to be a workaround when the balance of powers is inconvenient. Congress can avoid debating and voting on a bill and the executive branch gets to effectively write law without legislating it through an elected congress.

That's not really true; the US--including a generally modern administrative state--worked "at all" when Skidmore deference (which existed before Chevron and applied with wider scope) was the only form of deference to administrative agencies required by Supreme Court preference. Leaving aside the question of whether it is legally correct, overturning Chevron is not apocalyptic, and it is also relatively easily reversible, since it was not a decision about the Constitutional separation of powers but the interpretation of the Administrative Procedure Act. It can be, to the extent necessary, undone by statute, either specific grants to specific agencies regarding specific laws or broadly by amending or superceding the relevant provisions of the APA.

Loper Bright moves more power to the (lower, obviously, as the Supreme Court could always do what it did there) courts than they had under Chevron, and it will increase uncertainty, litigation risk, and the degree to which -- as a direct consequence -- wealthy interests are inherently favored by the cost of resolving disputes in a wide range of areas until and unless legislative changes are made. But it isn't apocalyptic on its own.

(Obviously, it increases the cost of Congressional dysfunction, though, which has been a serious problem recently.)

A judicial doctrine concocted by conservatives in 1984 so that the Reagan administration could let an oil company pollute more is “the reason the US works at all”?

A more liberal Supreme Court might have sided with the environmentalists and upheld the decision below (written by none other than the notorious RBG-she hadn’t been elevated to the Supreme Court yet). It’s a good thing that didn’t happen, because then the US would have stopped working

I mean, arguably it worked better during the years before the decision

Not to say that I agree with the recent supreme court decision, but eventually the dust will settle

Yeah. Some rivers caught fire here and there, but otherwise it had been OK.

But by definition, Congress can't delegate authority it doesn't have. In particular, Congress doesn't have the authority to transgress the Constitution.

So there's no question of whether the statute permits the agency to transgress the Constitution. It never does and never can. Even if the law said "Congress authorizes the CBP to violate the Constitutition," the agency would still not be authorized to violate the Constitution.

In the next year I would imagine there will be a movement to overturn what the CPB has done.

As others keep explaining, the Chevron deference never allowed agencies to defy the law. It merely allowed them to have the final word on how an ambiguous law that applied to them should be interpreted. For example, if Congress passed a law saying "there shouldn't be poison in the water", the EPA would have the final word on whether a particular pesticide at a particular level constitutes "poison". A company couldn't sue and say "we think this is actually harmless". But the EPA couldn't say "this law authorizes us to hang anyone that puts poison in water" and get away with it through Chevron deference.

If something CBP does is challenged on its constitutionality the court doesn't need to go to Chevron, it will say that the enabling legislation is unconstitutional.

Do you have one source for this? A case where someone tried, or a blog post by a legal expert discussing this?

Chevron was essentially the decision that an agency established by congress to make rules for a domain had rulemaking powers for that domain so long as it doesn't go against express congressional decisions.

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)

?

This recent change in the supreme court was made with the intent of letting huge corporations bully the EPA and the like. It will not help anyone at the border being bullied by law enforcement.

Source: https://www.reuters.com/legal/government/us-supreme-court-in...

This cannot be challenged because Chevron was in place. I would imagine it will now be challenged.

Even if the law is a bit hard to understand, it's beyond obvious that the current Supreme Court, the same court that ruled on both of these decisions, intends for federal law enforcement officers to be immune from the law, while agencies are not able to make any decision beyond what Congress says. So the CBP, or at least its officers, will be even more powerful, while the EPA and FDA and FAA and FCC will be almost unable to do anything.

Respectfully, language like this makes you look very partisan. Of course it could be challenged. How do you think Chevron got thrown out? Because something concerning it was challenged.

Still, it doesn't support your claim that Chevron means that an agency can interpret the constitution. That's not at all what Chevron says and it isn't true.

That's just not correct.

That's not what the source you give says. It says the Fourth Amendment's prohibitions on searches and seizures do not fully apply at the borders. And even that is a questionable description of the actual state of the law. The Fourth Amendment prohibits "unreasonable" searches and seizures; the actual state of the law is that searches and seizures at the border for the purpose of preventing contraband from entering the country are not considered unreasonable, so the Fourth Amendment does not prohibit them.

And, as another response to you pointed out, all this was the state of the law before the Chevron case even began, so whatever issues you might have with it cannot be due to Chevron deference. Indeed, much of the state of the law is due to court rulings, not agency findings, so Chevron would not apply to it even if it had been decided earlier.

You may agree with the current President’s politics, but chances are you won’t agree with the next one’s.

https://www.yalejreg.com/nc/chevron-deference-vs-steady-admi...

Namely, Republican efforts to dramatically increase the scope of government employees that a president can appoint and fire on a whim. Basically a move towards the "spoils system" of rewarding political allies and donors with powerful or lucrative jobs.

https://www.citizensforethics.org/news/analysis/faq-the-cons...

It's pretty easy for a company to pick a court district which will be favorable to them, regardless of the experts brought in.

https://reason.com/volokh/2023/03/28/ending-chevron-deferenc...

https://www.washingtonpost.com/opinions/2024/07/10/supreme-c...

And a slightly older article (before the decision) hoping that it would turn out the way that it did:

https://www.washingtonpost.com/opinions/2024/01/12/chevron-d...

> When Chevron as active you could not challenge the US constitution not applying to border patrol because of Chevron. This is literally the CPBs only line of defense.

Specifically that Chevron enables this - I don't see how Chevron applies here.

I haven't heard anything from CBP, so we can all guess your "fact" is disingenuous...

(And if it were really the case, how long before it is even more enshrined in law?)

Some judge in Texas might allow a company to dump chemicals, because they are ignorant of chemistry or listened to the corporate experts trotted out to explain why forever chemicals are fine.

None of these changes are for the good of the people, long term.

https://newrepublic.com/post/183269/elena-kagan-supreme-cour...

https://www.courthousenews.com/after-scathing-kagan-dissent-...

You can read the entire passage here: https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf

My question is whether we will see the inverse happening: people suing local companies and winning lawsuits forcing the corpos to follow the law rather than relying on government agencies to do it on the public’s behalf.

Relentless, Inc. v. Department of Commerce was brought by lawyers from the New Civil Liberties Alliance, which is also funded by the Koch brothers

so hint: it definitely was "big" entities looking to skirt regulations

The decision has very little to do with a small business problem and the real reason for all of this is complete deregulation of vast corporate enterprises who will challenge every single environmental regulation.

To paint it as "small business stands up to big govt" is at best, hopelessly naive, and at worst, corporate propaganda and outright lies.

Corporations have vastly more power and influence in our government than they did in the 50s or 60s or 70s or 80s.

I do not trust these entities to stop rat fucking innocent Americans because they had the audacity to not want to be poisoned.

EDIT: On desktop, pasting in from the dissent:

(Kagan's words) Consider a few examples from the caselaw. They will help show what a typical Chevron question looks like—or really, what a typical Chevron question is. Because when choosing whether to send some class of questions mainly to a court, or mainly to an agency, abstract analysis can only go so far; indeed, it may obscure what matters most. So I begin with the concrete:

- Under the Public Health Service Act, the Food and Drug Administration (FDA) regulates “biological product[s],” including “protein[s].” 42 U. S. C. §262(i)(1). When does an alpha amino acid polymer qualify as such a “protein”? Must it have a specific, defined sequence of amino acids? See Teva Pharmaceuticals USA, Inc. v. FDA, 514 F. Supp. 3d 66, 79–80, 93–106 (DC 2020).

- Under the Endangered Species Act, the Fish and Wild- life Service must designate endangered “vertebrate fish or wildlife” species, including “distinct population seg- ment[s]” of those species. 16 U. S. C. §1532(16); see §1533. What makes one population segment “distinct” from another? Must the Service treat the Washington State population of western gray squirrels as “distinct” because it is geographically separated from other western gray squirrels? Or can the Service take into account that the genetic makeup of the Washington population does not differ markedly from the rest? See Northwest Ecosystem Alliance v. United States Fish and Wildlife Serv., 475 F. 3d 1136, 1140–1145, 1149 (CA9 2007).

- Under the Medicare program, reimbursements to hospitals are adjusted to reflect “differences in hospital wage levels” across “geographic area[s].” 42 U. S. C. §1395ww(d)(3)(E)(i). How should the Department of Health and Human Services measure a “geographic area”? By city? By county? By metropolitan area? See Bellevue Hospital Center v. Leavitt, 443 F. 3d 163, 174– 176 (CA2 2006).

- Congress directed the Department of the Interior and the Federal Aviation Administration to reduce noise from aircraft flying over Grand Canyon National Park—specifically, to “provide for substantial restoration of the natural quiet.” §3(b)(1), 101 Stat. 676; see §3(b)(2). How much noise is consistent with “the natural quiet”? And how much of the park, for how many hours a day, must be that quiet for the “substantial restoration” requirement to be met? See Grand Canyon Air Tour Coalition v. FAA, 154 F. 3d 455, 466–467, 474–475 (CADC 1998).

Maybe it was already that way by a different route, but still.

Lawsuits are costly in time and money: on balance one would expect more lawsuits as the judiciary becomes more powerful, and fewer the easier it becomes to predict how judges will rule. Which tendency is stronger remains to be seen.

The end goal is to make sure all federal regulations come from Congress, which limits what regulations can be made because the Republicans will just say no to everything.

My children may yet get to witness rivers catching on fire, a spectacle that had been denied to them by the killjoys at the EPA.

So lawsuits have to be filed, first. So they will. Some of them may be resolved by the agencies just rolling over and doing the moral equivalent of pleading guilty, but if I know my principles of bureaucracy, that will be the rare exception, probably only so they can dedicate resources to some other more important lawsuit.

And all of it will be written by corporate lobbyists. It's already that way now, of course, it's not like congressmen write any meaningful amount of legislation themselves, but now there will be an even larger army of unelected special interests making sure the regulations are very carefully tailored in their own best interests.

(https://ipwatchdog.com/2024/07/10/preliminary-injunction-ftc...)

You assume the Democrats want to govern instead of capitulate to the Republicans after enough delay.

I’m aware thus would also block some changes that I agree with, but longer term I think this would be much healthier for democracy.

This would move both power and responsibility to the parliament from the courts, which IMO would be healtier for democracy long-term.

That said getting rid of the Chevron defense and a lot of other rulings from the court have been both very activist, very harmful, and badly argued.

This is the first time I've heard this specific dimension about it. Am I correct in understanding that if the law explicitly delegates to an administrative agency, that's a different scenario?

I've read all about how the Chevron defense keeps the government functioning because we don't want Congress to have to decide every little thing in the laws, and to let the experts in the agency figure out the details. But it sounds like if the law explicitly says "XYZ to be determined by Agency ABC" then that's not something covered by the Chevron defense? Have there been lawsuits against agencies in that case? If not, why not? And does that mean the answer going forward is for Congress to be explicit about what they're delegating and to whom? That doesn't seem so bad, but maybe I'm misunderstanding what it's saying here.

The Clean Air Act (CAA) of 1963 requires the EPA to set emission standards for "any air pollutant" from motor vehicles or motor vehicle engines "which in his judgment cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare."

The main question of that case was whether CO2 and other greenhouse gases are an "air pollutant" that causes "air pollution". Unsurprisingly, the CAA didn't specify each and every "air pollutant", rather Congress implicitly left it to the EPA.

So the problem was not whether Congress had explicitly delegated regulation to an administrative agency but whether the EPA was required by statute to regulate CO2 and other greenhouse gases.

Going forward, deference to the administrative agency is not required. The judiciary can certainly still side with an administrative agency. However, the courts will have to play a larger role in addressing technical statutory questions. The courts have always been able to disregard agency expertise (as SCOTUS just did), this just signals a greater willingness to do so.

So, one of the big problems with chevron deference is that when the laws says XYZ to be determined by agency ABC and agency ABC determines Q, but an election happens, the president gets up and makes a big populist speech, issues an executive order and now agency ABC determines R instead. This is a problem because under chevron + APA, the agency determination of both Q and R which may be contradictory both have the force of law and the courts were bound to simply defer to the interpretation.

You have agency making rules which have the force of law but the "law" is changing without the authorizing statute having changed and the courts' hands were tied by chevron. This is especially problematic when the rulemaking has associated criminal penalties.

Now, just because chevron deference no longer exists doesn't mean that agencies cannot make rules, but it does mean that if an agency makes a wild swing in rulemaking without a change in the underlying statute then its much easier to challenge that action. Ultimately, we want these things in the hands of the representative branch of the legislature anyway. One can dream anyway...

No way you’re getting a with-teeth EPA law, for example, through a modern Congress until we’re back to smog clouds over our cities and burning rivers and creating new, large cancer districts and superfund sites. And that’ll have to go on for a while before it happens. Then, maybe.

We’ve been coasting on good laws from the 70s and earlier, mostly, while weakening regulation has been eating our foundation like termites (especially Chicago-school-driven judicial rulings on how the executive is allowed to enforce anti-trust, in the late 70s, and later removal of media ownership consolidation rules). Now they (people who wish they could hurt people while making money and not be told to stop) can attack those good laws directly.

Like any other law, they rule it as unconstitutional. Appeal its way up to the SCOTUS, and they will ultimately decide if they want to keep the power or give it back to the regulatory agencies.

Supreme Court overturns 40-year-old "Chevron deference" doctrine

https://news.ycombinator.com/item?id=40820949

In my opinion, the Chevron ruling is not only fundamentally unconstitutional, it is poison to this nation, and this recent decision rightly restores the balance of power.

1. Is it vague about legal matters? For example, does the law seem to allow government agents to search somebody's house without good cause or notice? Then the judge, being an expert in law, should make the call.

2. If not 1, then it seems to be a subject matter vagary. For example (pulling from the dissent), is the Gray Squirrel population in the Pacific Northwest distinct enough from other Gray Squirrel populations in the US to qualify for protection? Should this be determined by geography, genetics, ecosystem similarity? How could we expect a judge to wisely rule on this unless they also have an advanced degree in biology and ecology?

Chevron recognized that matters of law should be decided by judges, but also accepts that we don't have idealized judges who always have perfect understanding. I expect we'll soon see glaring examples of imperfect (a.k.a., human) judges soon.

This makes us great at redressing harm, and terrible at preventing harm. A lot of modern technology is such an effective force multiplier that the process of establishing standing and having a hearing before a preliminary injunction can be catastrophic, far beyond what was possible when the Constitution was drafted.

Under Chevron, judges deferred to reasonable regulatory interpretations. Now it's a slower, more adversarial process.

I hope you're right and the answer is to just grow the government and judiciary.

Their constitutional role is quite a lot more limited than their de facto role.

Congress may ultimately decide to assert their dominance, which sounds good, except that Congress is already fully captured by special interests anyway.

This ruling is the thing that is the poison to our nation. It is born not only of extreme conservativism but also nihlism that doesn't care how many things are wrecked if there's less regulation for big businesses. It is extremely cynical ruling that has little relationship to the constitution. Congress has been broken at least since the 90s(thanks Gingrich) and the Chevron defense has helped keep the country working

I suppose one could say, "Just read the text! Congress shall make no law..."

But I think even the strictest originalist would concur that the Framers understood there would be times when Constitutional absolutes would come into conflict and reasonable judgments made, by the Executive, Congress, or the Court.

As conflicts between reasonable judgments, that's the judicial process. The supreme court can allow circuit splits to exist, or they can express their own opinion. Of course, the Executive is free to make reasonable judgments within their realm. They're free to not prosecute questionable cases, and they're also free to prosecute defendants on cases where the court ultimately disagrees (that the conduct was legal).

They do get to tell Congress they’ve stepped over the line in regulating speech about vaccines on the Internet, at least without a rationale that survives a level of review commonly called “strict scrutiny”.

I took your original post to be arguing this distinction wasn’t well founded in the text of the Constitution or historical understanding of it.

Some of the weak spots are rational basis review being too deferential. Certainly a law is constitutional unless there is some claim to the contrary, but when it comes into conflict with individual rights, a judgment has to be made and that’s an inherently judicial task, not suited to deference.

Another weak spot is the commerce clause, because it is certainly legitimate evaluate whether the law falls within Congress’s legislative authority. Anyone who reads the enumerated powers can tell “essentially anything” would have been a lot easier write… and yet the founders enumerated specific limited areas.

It’s hard to predict exactly what they’ll say, but my best guess would be focusing more on this connection between the legislative authority and the means employed by the statute, balanced against the rights allegedly being impaired (without regard to whether those are fundamental / class based. If a law is squarely within legislative authority, then congress shouldn’t need a rational basis. Rather than saying it impairs a fundamental right, they could focus on the fact that regulation of speech is not strongly within the legislative authority. As a law ventures further from historical and transitional exercises, the basis for the law would have to get stronger.

Honestly, this isn’t a major change, but erroneous New Deal Era caselaw has corrupted the logic. Sure, in theory everything could be called interstate commerce, but regulating viewpoint based speech is a has a stronger impact on speech than on commerce. Meanwhile, regulating the length of merchant vessels falls a lot closer to regulating seagoing commerce than to speech. No need to apply different standards.

https://www.scotusblog.com/2024/07/supreme-court-expands-tim...

Consider the growth of the Administrative State, which amounted to a shift away from elected representatives crafting laws to having those representatives essentially vote on requirements documents.

Unelected bureaucrats then turn the legislation into regulations so that the operating system of the government can function.

But since its regulation and not legislation, it's Constitutional. If you squint.

The point is one of scalability. Whether one considers the Administrative State a great idea or not, it came about because it was needful.

So, all of the MAGA Conservatives can do victory laps, but if the basic requirement to keep the ship of state on an even keel goes unmet, then stand by for the blowback.

I'd like to see some genuine thought given to how to balance the requirements of modern life with the desire for accountability for decision-makers, which bureaucracy famously obviates.

For starters, consider Federalism (Washington DC only manages interstate and international, not individual).

A political architecture, like a software architecture, might be improved by such a layered approach, instead of the (substantially) Monolithic State of Washington D.C.

Under Chevron, a court defers to agency interpretations of ambiguous statutes, as long as the judge finds the interpretation to be reasonable. If the court limits or upends the Chevron doctrine (which the SCOTUS did), the ruling would pull back the leeway that agencies have had in interpreting statutes.

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For example, now the FCC no longer has the power over topics like Net Neutrality ... that is now left up to the courts.

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The historical stance on this was, agencies should have authority over ambiguous statutes because they are Subject Matter Experts in the space (you can't expect a judge to be a SME on every possible topic).

If you take Chevron seriously, the fact of whether or not Congress in 1934 wrote a law that required modern ISPs to be regulated as common carriers under Title II of the Communications Act actually changed as the FCC ping-ponged between Republican and Democratic control over the past 10 years.

If you're a judge who thinks the law should carry forward consistently the same meaning it had when it was passed, difficult ambiguities and all, that's a pretty bad bug: Now the meaning of a law to the people of the United States isn't fixed at all, it can change (and change back) at the will of the President, without Congress amending it.

I have to wonder which circuits will be most favorable to the people who want to overturn regulation. Will it be East Texas again? Companies will have a lot of leeway to forum shop when looking to deregulate themselves.

A good example from a few terms ago is Delaware v. Pennsylvania and Wisconsin on what is or is not a money order:

https://www.supremecourt.gov/opinions/22pdf/145orig_kjfl.pdf

The oral argument was quite entertaining, IIRC:

https://www.oyez.org/cases/2022/22O145

New technology advancements make once very well understood laws, now ambiguous.

Take AI as an example. How many laws have been written over the past few decades that could not have predicted AI use cases or its application.

As opposed to just creating a new "Federal Department of AI" that has broad powers to regulate AI however its unelected administrators see fit.

~50 years ago, laws were written that stated "all communication companies are consider utilities and as such, all utilities should have common access to 'telephone' poles for use to lay down cable" (I'm paraphrasing).

Up to this point, "communication" just means copper lines for telephone (voice).

Then, in the 1980s - the Internet launched.

New companies are now wanting to lay down Fiber optic cables to use for the Internet, and they want the same "common access" to these telephone poles.

But it's ambiguous, what is a "communication company".

This was well understand in the 60s and 70s to mean telco ... but should that definition now be expanded?

So an agency comes in, and say "yes, fiber is consider communication - fiber companies get access to telephone pols to lay fiber down".

When this law was originally written, it's was clear. But then new technology challenged what the meaning & intent of the law meant.

That is a delightfully optimistic name for 'corporate lobbyists.'

I work in the dietary supplements industry, and while people love to call the space unregulated, it's moreso that regulations remain unenforced. So much so that companies often have to ask the FDA for clarification around ambiguous regulations. And the FDA is often keen on not responding. You often find out because the FDA's decided to enforce a rule, one that the industry will have asked for clarification about countless times beforehand.

If regulatory agencies have ample opportunity to clarify ambiguous regulations, they should be doing so. They should not leave it ambiguous until somebody gets hit with a fine. That does not serve public interest.

"No, our compound does not pollute the water."

"It's arsenic with an extra carbon molecule, making it more poisonous!"

"But it's not covered in the law, so it's not a pollutant."

I guess the main concern would be congress being overly "politicized" (especially right now) and so things would be a bit slower to take effect if everything that pops up becomes a partisan talking point.

But government agencies are also pretty "politicized" too, with agency policy directions flip flopping based on who wins presidential and/or midterm elections.

Maybe I'm too optimistic that this could be a forcing function for people to elect more reasonable people.

At least there's some delay, and all current agency rulings will remain in place until challenged, and even then stand somewhat decent odds of remaining in effect. Maybe it'll be a brexit-like situation where people start to realize it was maybe a step too far, and a more well-defined and robust version of chevron will eventually return? Who knows

Bringing in the agencies will not change the scope of the problem.

And the real issue, IMO, is that while we're waiting (either on congress or the courts) companies can get away with not following regulations which are currently being questioned (via injunctions granted by politicized judges).

Judges too are unelected and selected by politicians. And they don't have to worry nearly as much about their job, which creates its own issues. There's a reason term limits exist.

The problem you complain has been there since the very start, in our constitution. There has been 250 years of court cases trying to determine exactly what the boundary of those vague rules state.

The ACA is an example of the divergence between rhetoric and political reality. It is easy to step in front of a camera villainize "ObamaCare" to engage your voters. But if you actually repeal it then you get to explain to those voters at the next election why you reintroduced lifetime caps and preexisting conditions while premiums did not go down (in fact, they probably went up!). Politicians are unfailingly partisan, but they are even more reliably panderers. Can't be an effective partisan from the sidelines.

Even if we didn't have a near dysfunctional Congress there are so many small decisions on regulations it would take up most of their time passing them individually. No matter how you slice it there's a need for something like the delegation of powers to agencies to keep up with modern industry.

Most politicians are not extremists who would rather see the US become a failed state than cooperate with their political opponents. It would be like a (mentally healthy) married couple choosing homelessness because they disagree over what color the walls should be.

The other half is that enlightened people that don't value democracy and think they represent the "greater good" want the power to circumvent such archaic processes like "passing laws".

Chevron Deference would have continued but the government simply couldn't help themselves.

https://natlawreview.com/article/analysis-loper-brights-and-...

Unless the "new precedent" is arbitrary random daily policy common in despotic regimes like Russia. i.e. one has no clue what will happen when they step outside everyday.

In general, legal consensus is supposed to evolve from _many_ trials with civilians deciding on what legislated policy is appropriate to enforce for its residents.

Giving 40 years of people that sat through jury duty in 8000 trials a troll... is not what justice, accountability, and due process is supposed to look like.

It is not my opinion that matters... but I do like popcorn nom nom nom =3