Also this is an area where first principles analysis is likely to lead you astray - I’d recommend starting with SFUSD’s public budget to understand what their cost structure is.
You're recommending I look at SFUSD's public budget when:
- that budget is how I was able to calculate per-pupil spend
- in another comment you admitted to having 'no idea' where the $28k/year number came from, suggesting to me that you haven't looked at the budget yourself
The granularity in SFUSD's published budget is not sufficient to analyze what is useful and what is waste.
I did some research into this - the public budget is actually reasonably detailed. The biggest gap between your analysis and the actual expenditures are the SFUSD faces much higher facilities costs, higher admin cost due to Teacher coaching, and specialized programs for English language learners and special education
The big thing you’re missing is special education, and to a lesser extent English Language Learners. School districts are obligated to teach every student, some of whom cost the district dramatically more than they receive from the state.
Your admin costs are also low - you need to account for each teacher being coached and managed, running school operations and front desk, facilities management, finance, IT, etc.
It's worth reading the judgement itself. The court has indeed voted to give the courts more power, but not on the basis of nothing. It did so because it views it as taking back powers that were incorrectly/lazily given up without basis in what Congress wanted. From the judgement:
Congress in 1946 enacted the APA [Administrative
Procedures Act] “as a check upon administrators whose zeal might otherwise have carried them to excesses not contemplated in legislation creating their offices.” Morton Salt, 338 U. S., at 644. The APA prescribes procedures for agency action and delineates the basic contours of judicial review of such action. And it codifies for agency cases the unremarkable, yet elemental proposition reflected by judicial practice dating back to Marbury: that courts decide legal
questions by applying their own judgment. As relevant here, the APA specifies that courts, not agencies, will decide “all relevant questions of law” arising on review of agency action, 5 U. S. C. §706 (emphasis added)—even those involving ambiguous laws. It prescribes no deferential standard for courts to employ in answering those legal questions, despite mandating deferential judicial review of agency policymaking and factfinding
This feels like one of those topics that may sound ok in theory, but breaks down in practice. The implication is that the judges must be well-versed enough in any domain brought before them to interpret the laws effectively. This seems like a tall order for nine people. We have already seen this trouble in expecting strict interpretations regarding tech.
To be fair, Congress has the same problem. I believe that was in large part the impetus for giving the agencies discretion. They have a better chance of having the depth of expertise to craft effective regulations.
The Supreme Court doesn't resolve cases directly, they resolve questions of law for lower courts to take into account. They are meant to be experts in law, so there's no problem there. The lower courts can't be experts in everything, but bear in mind two things:
1. Courts have expert witnesses and a whole system around how they are called, challenged and questioned. Judges are trained to learn what they need to know from witnesses.
2. Good court systems do have expert judges they can draw on.
I recently took part in the Craig Wright case in the UK as a witness. Wright forged enormous quantities of evidence and proving the forgeries often required deep technical knowledge about file metadata, how computers worked etc. Fortunately the judge was deeply technical himself, being often a judge on complex patent cases, and had no difficulty with any of the complexities.
It reads like it creates a deliberate impasse. The opinion states that ambiguities in law no longer implicitly give agencies discretion. That means Congress has to write unambiguous laws. But my original post acknowledges they cannot. Based on this ruling, it seems like anything other than a perfect, airtight law means it's effectively non-enforceable. So where does that leave us? It seems like the SC has laid the table for constant rules-lawyering by corporations to get whatever they want. In other words, they've let the perfect be the enemy of the good.
> That means Congress has to write unambiguous laws
I don't understand where this belief is coming from. The judgement explicitly states that writing unambiguous laws isn't possible. There will still be ambiguous laws, and those ambiguities will still be resolved. The only matter being decided on is who gets to resolve ambiguities - is it the agencies or is it the courts.
Let's put this another way. Did Congress have to write unambiguous laws or have them be unenforceable before 1984? Clearly not. The Constitution itself is ambiguous on many points. Do other countries, which lack any equivalent of Chevron deference, have to write unambiguous laws or have them be unenforceable? Again, clearly not.
>The only matter being decided on is who gets to resolve ambiguities - is it the agencies or is it the courts.
I think we are agreeing here. I think the distinction is that I'm claiming the courts would need (yet don't have) the expertise to clear up ambiguities in such domains. Where do I get this claim? From the justices themselves.[1] There is evidence they are overly confident in their understanding when "doing their own research" on a domain outside their expertise.[2]
So given that context, it's probably a bad idea to have justices decide on ambiguities. But if that power resides in them now, it means the only way to have effective laws is to avoid ambiguities in the first place. That's why I stated that is now on Congress. However, the court is also acknowledging that isn't possible. That's why I originally said it reads like they created a deliberate stalemate. From the court we have the following:
1) Congress cannot be expected to create unambiguous laws.
2) It is the court's job to resolve ambiguities.
3) The court lacks domain expertise.
I'm claiming those set up a natural conflict because expertise is necessary to effectively resolve ambiguity.
The most generous interpretation is that the justices don't need to know the details of the domain expertise, but rather just need to know how it interfaces with people and the law.[3] I'm pretty skeptical of that leading to good outcomes in complex, nuanced situations. I don't think we can pretend law is abstractly disconnected from the complex systems it regulates. As society progresses, most things get more complex so I expect the problem to get worse, not better.
Remember that law is first and foremost meant to be read by ordinary people, as they are the ones expected to know it and follow it. Ignorance of the law is not an excuse, etc. If a law is so difficult that even a judge armed with a courtroom full of expert witnesses can't figure out what it means it should not exist, because how could any actual citizen be expected to understand or obey it? People who write such laws don't get to whinge when other people try to clean up their mess.
There's certainly no evidence of an attempt to create a deliberate stalemate here, as "laws that judges cannot interpret even with help" isn't something the Supreme Court is going to consider a legitimate problem to begin with so why would they consider it? But it's fascinating the degree to which some people on this thread are sure this is all a cunning secret plan by the justices to advance a political ideology. Projection, much?
> There is evidence they are overly confident in their understanding when "doing their own research" on a domain outside their expertise.[2]
Great. So are regulators, politicians and especially journalists. The idea that agencies never rely on bogus claims or statistics is a deeply romantic view.
Really, I don't have any sympathy for the US regulatory agencies on this issue. Too many of them have a history of abusing Chevron deference. If the deference standard had any advantage at all it'd be that you could get binding rulings from regulators ahead of time, without needing to actually end up in court first. But regulators always refuse to do that, because they aren't obliged to and it would reduce their options. Instead what they do is make vague rules, tell citizens (e.g. entrepreneurs) who ask for clarification to get lost, wait years for some of those people to make successful businesses and then decide that what they were doing had been illegal all along under some strange interpretation of the relevant rule. It's a form of retroactive lawmaking, which is forbidden by basically any constitution because the whole point of law is that people are meant to be able to follow it.
This sort of abusive behavior is so common it's clearly deliberate. Instead of helping society, the agencies end up working against it in order to maximize their own power.
Having the people who interpret laws be fully separated from those who write the laws aligns incentives properly: there's no longer any benefit to passing maximally vague or contradictory rules in the hope of being able to do whatever you want later. Laws that are as specific and clear as possible is exactly what a society needs to succeed, because when the rules are clear people are free to innovate and do business without fear.
>So are regulators, politicians and especially journalists
Yes. The important distinction that I drew was that the power is now vested in a very small group of nine people. IMO that measures it much easier for biases to continue unabated. At least in large numbers, there are more likely to be more rational viewpoints to counter our innate biases.
> At least in large numbers, there are more likely to be more rational viewpoints to counter our innate biases.
Maybe, but there is absolutely no mechanism to ensure that rational viewpoints will prevail in a group of large numbers, and quite a large danger of social pressure causing less rational viewpoints to prevail instead.
The court previously provided those guardrails. With Chevron deference, the agencies could clear up ambiguities, but the court could reel them back if they were found to be unreasonable. Now, there is no check-and-balance; the entire power resides in the court. In the words of Justice Kagan, that is "judicial hubris."
If the court makes an unreasonable interpretation, the only mechanism to rectify it is for Congress to be explicit. This has multiple problems: first, getting anything through Congress is becoming increasingly difficult. Secondly, the Court already admitted that laws will always have ambiguities because Congress doesn't always have the expertise to be that explicit. From that standpoint, the Court has claimed a power while acknowledging there is very little in terms of a check on that power.
Yes, that's my point. An agency interpreting the law that governs their mandate is at least nominally trying to do so in a manner that yields effective policy, but that's not really a goal of the courts, so letting the courts defer to the agencies probably will produce better policy then leaving it up to case law.
> An agency interpreting the law that governs their mandate is at least nominally trying to do so in a manner that yields effective policy
Ideally. In practice ambiguities in statutes governing agency mandates are always interpreted by agencies in whatever way would maximize their own options and power. That's the written justification for the APA in the first place: reeling in excessive "zeal" amongst administrators.
The courts don't get powers from the law directly (except meta-powers like the one this case is about), so there's no direct benefit to judges from interpreting law in a maximally agency-advantageous way. That's why countries (not just the US) have courts resolve ambiguous law. It's a core part of their job.
Yeah, but giving too much deference to agencies is also a recipe for peoples' rights to be trampled by a regulatory agency acting unlawfully. Acting in accordance with their policy goals is fine and all, but they still have to do so within the bounds of the law and if they're losing at the District level because they can't rely on Chevron deference anymore, I mean, that's completely fine. Go back to Congress.
How does this ruling fix that issue when the court admits it’s impossible to avoid ambiguous laws? Now it’s just unelected justices deciding instead of unelected agency bureaucrats. I think there’s an argument that could be worse, given the lifetime appointments of the court; at least the people have the chance to course correct the executive branch every four years.
I think we can all agree that the best solution is unambiguous laws, but that’s an impossibility by the courts own admission. Chevron already had a mechanism to prevent agency overreach by giving the court discretion to determine the reasonableness of an agency interpretation. This now just puts the onus on the court to do it all, and they admit they don’t have domain expertise. I fail to see how that is a better solution.
The great thing about an adversarial court system is when the challenge before the court is that a private party is challenging the agency’s interpretation of the law, they have to make their own case about it and convince a Judge that they’re right and the text of the law is available for all to read. Given that agencies are charged with enforcing the law, they should know the laws they are enforcing and their own authorizing statues better than anyone, and if that’s the case, they are still arguing from a position of strength. What’s changed here is that a Court is not obliged to defer to the agency’s interpretation in most cases.
I don’t want the domain experts to have an easy time of it. The law is not their convenience, it is for the peace and prosperity of the Republic, and given that Agency interpretations can change on a dime (up until recently) with almost minimal justification from a new administration, I don’t want to defer to staff who are charged with interpreting laws in a way more favorably for their new bosses, even if it goes against how they did business under their old ones to have an easier time making their case in court. The law should be more concrete than some mere electoral promises and wishful policy-thinking.
I just to work for one of the leading expert witnesses in the country. Expert witnesses are just advocates, hired by a client, who know how to throw fancy words around in a soothing, confident manner that makes the listener feel smart.
Nobody has a career as an expert witness for long if they go against a client's wishes. There is no such thing as an impartial expert witness in the current system. They're all hired by one side or the other. They're basically subject-matter expert lawyers.
> There is no such thing as an impartial expert witness in the current system
You're saying a form is bad because it doesn't line up with how it ought to be (you said "impartial"). But in saying so, you imply there is an ought. That is the real form (what it ought to be): an impartial expert witness.
When a form only presently exists in an abuse thereof, that doesn't necessarily invalidate the form as a worthy pursuit.
History can tell us whether such a form is worth pursuing. Expert witnesses in the US have been more or less impartial in the past. Communism has never been achieved, and its pursuit has never led to well-being of the people. Both are "ideal forms" in a philosophical sense, but history bears out which is worth pursuing and practically achievable.
So my take is that what's needed is reform of expert testimony through congressional law, including independent review of DAs, to ensure they prosecute expert witnesses who failed a legal impartiality test.
Expert witnesses are already required to be impartial. There's currently an inquiry in the UK over a massive miscarriage of justice caused by an expert witness going rogue and letting prosecutors put words in his mouth, etc. A big part of the scandal is that prosecutors were meant to inform him of his legal duty to be neutral and share all the facts, but they didn't, so now he's claiming he didn't realize he was required to share all relevant facts including those negative for the prosecution.
There's a difference between a requirement and its enforcement.
I'm arguing for better enforcement via law, to ensure witnesses are either impartial or prosecuted for impartiality.
If partial witnesses aren't being prosecuted, then launch an inquiry and do a causal chain analysis. It's bound to turn up a root problem that is solvable.
This is a common philosophical/ideological difference.
The left tend to argue that impartial people exist, and that they are numerous/easy to find.
The right tend to argue that there's no such thing as an impartial person, that you can get people who start out partial and do their best to be fair (e.g. judges) but it takes constantly training, reinforcements and incentives to do that and there's always the danger of slipping back. You definitely can't assume it.
The adversarial court system is based on the right-leaning belief: although expert witnesses are told to be impartial, the system doesn't assume this is enough and so witnesses are called by one side and cross-examined by the other. The lawyer's job is to sniff out any signs of bias or incompetence.
> This feels like one of those topics that may sound ok in theory, but breaks down in practice. The implication is that the judges must be well-versed enough in any domain brought before them to interpret the laws effectively
No -- subject matter expertise is not relevant per se, as what is being evaluated in these cases is not whether the policy advanced by a given agency is sound on its technical merits or factual basis, but whether it is within the bounds of the authority granted to that agency by the applicable statutes.
The courts aren't concerned with "crafting effective regulations", they are concerned with ensuring that the people who are tasked with doing so are operating consistently with prevailing statute law and the constitution.
And, considering that the judiciary is staffed with the world's foremost experts in statutory interpretation and constitutional law, this arrangement makes sure that all of the disparate facets of the process are being undertaken by the most qualified people available.
It's not appropriate to make officials who are hired on the basis of their knowledge of medicine, RF transmission, economics, etc. to bear the entire burden of determining the complex legalities of their authority. They have to step far outside their field of expertise and engage in textual analysis of statutory law or delve deep into constitutional theory to determine whether their rule-making process is indeed legally permissible. It's better to let the courts do their job here and tell them when they are out of line, so they can focus on doing their own jobs properly.
Maybe I’m misunderstanding, but what you’re describing sounds like what I thought the case was before this ruling. The courts were deciding on the reasonableness of the agency interpretation. Now it sounds like the court is interpreting directly. To do the latter effectively, I still maintain you need a solid expert understanding of the domain.
It sounds like we disagree on who is better equipped to make the kinds of interpretations necessary for effective policy. Like I said in another post, I don’t think we can pretend law can be abstracted and cleaved from the systems it regulates. The court admits they don’t have expertise in those systems. That makes me feel they are ill-equipped for the types of interpretations.
What you had understood and what he's describing is the situation pre-1984 and now post this judgement.
I think a lot of the reason this thread has blown up is that the Chevron doctrine was really very strange and not at all how you'd expect the US legal system to have been working. It doesn't line up with any standard teaching of civics, for instance. The Supreme Court clearly felt the same way and has now instructed courts to go back to doing what everyone thought they were doing already.
I don’t know that I agree. It’s exactly the understanding I was given from an engineering law course, for example. Prior to this ruling, the regulatory agencies were given latitude to interpret ambiguous law as long as they were determined reasonable by the court. It’s also what I think most people understand, given the way people rail against agencies rather than statutes.
To be clear, I think there is a distinction between declaring if a law is constitutional and resolving ambiguities for non-constitutional, domain specific issues. I think the court is eminently qualified in one area, but much less so (by their own admission) in the other. I think those are two different aspects that often get conflated.
Yes, you are misunderstanding. Chevron obligated the courts to defer to agencies' own internal interpretation of statute law whenever any ambiguity arose as to what the law said. Reversing Chevron has restored that function to the judiciary, where it belongs.
I’m not misunderstanding then. Chevron still deferred interpreting ambiguity to the agency, but the courts could still check that based on a reasonableness standard. Now the court gets both aspects. Our difference is that I think that is a less good outcome because I believe domain expertise is necessary to effectively clear up ambiguity and the court admits they do not have that kind of domain expertise.
I think the court should reserve power for constitutionality (their domain expertise) and leave resolving the ambiguity outside that to the regulatory experts of those respective domains.
> I’m not misunderstanding then. Chevron still deferred interpreting ambiguity to the agency, but the courts could still check that based on a reasonableness standard.
No, you are definitely misunderstanding. Chevron delegated a core duty of the judiciary to executive branch officials with no expertise in that field. The "reasonableness" standard you was a limited and constrained version of reasonableness standards devised and applied by courts in normal statutory interpretation, and deprived the courts of the power to fully exercise their duty.
> Now the court gets both aspects.
No, there is only one aspect here.
> Our difference is that I think that is a less good outcome because I believe domain expertise is necessary to effectively clear up ambiguity and the court admits they do not have that kind of domain expertise.
The domain expertise of the regulators in the field of regulation is irrelevant here, because the cases that go before the court are not about what measures are likely to be effective in fulfilling the agency's mandate, it's about what measures are legally permissible.
> I think the court should reserve power for constitutionality (their domain expertise) and leave resolving the ambiguity outside that to the regulatory experts of those respective domains.
The only domain at question here is the domain of interpreting the law, and the relevant experts in that are the judiciary themselves. You are conflating together completely distinct matters.
If you’re claiming the courts have more non-law domain expertise than agencies, you’ll need some evidence of that for this point to land.
If you look to Chevron for a concrete example, the issue was about the ambiguity of the scope of a “source” of emissions. That is not a law question because the law already deemed that sources can be regulated. It’s really a question of non-law domain expertise in terms of the definition of an emission source.
> If you’re claiming the courts have more non-law domain expertise than agencies, you’ll need some evidence of that for this point to land.
No, I'm not claiming that. I'm not sure what that has to do with this discussion at all, though, because non-law domain experience has nothing to do with domain experience in interpreting laws.
> If you look to Chevron for a concrete example, the issue was about the ambiguity of the scope of a “source” of emissions. That is not a law question because the law already deemed that sources can be regulated.
Huh? If the law says "sources can be regulated", then the question of what the statute means by "source" is 100% a legal question of statutory interpretation!
> It’s really a question of non-law domain expertise in terms of the definition of an emission source.
No, it absolutely is not! Congress -- not the domain experts in the regulatory agency -- used specific language to establish and circumscribe the scope of the questions that agency's authority would extend to. It is 100% the role of the courts to analyse the statutory text written by Congress and determine whether the agency is or is not operating within the authority that Congress established.
>I'm not sure what that has to do with this discussion at all, though
I would argue that is the central claim. Something can be law and ambiguous. The role of the court previously was to ensure the first part: that the law is Constitutional. Outside of Maybury I don't think anyone is disputing that. The difference is that this now says the arbiter of ambiguity is now the court.
Not everything related to interpretation should be up to the court. The court's primary role is in determining constitutionality; that is a much more narrow scope than what you're presuming. In many (most) court rulings, they are very deliberate in keeping the scope as narrow as possible. This ruling is one of the exceptions, not the rule. But you don't have to take it from me. Justice Kagan states:
"Some interpretive issues arising in the regulatory context involve scientific or technical subject matter. Agencies have expertise in those areas; courts do not. Some demand a detailed understanding of complex and interdependent regulatory programs. Agencies know those programs inside-out; again, courts do not...In one fell swoop, the majority today gives itself exclusive power over every open issue—no matter how expertise-driven or policy-laden—involving the meaning of regulatory law. As if it did not have enough on its plate, the majority turns itself into the country’s administrative czar."
>Congress -- not the domain experts in the regulatory agency -- used specific language to establish and circumscribe the scope of the questions that agency's authority would extend to.
I don't think this is correct. The court has acknowledged that Congress cannot make perfectly unambigious laws. The question is about who gets to clear up those ambiguities. Again, the role of the court is best suited to what they have expertise in: determining constitutionality. Defining what an "emission source" (or any other domain expertise question) is outside that scope.
I would argue that becoming an "administrative czar" oversteps the bounds of a judiciary responsible for determining constitutionality to one that blurs the lines with the executive branch. In Kagan's words, it becomes an act of "judicial hubris."
> The role of the court previously was to ensure the first part: that the law is Constitutional.
No. The role of the court is, and always has been, to determine what the law is -- constitutional law, statute law, common law, all of it. Forget Maybury and think Marbury. Chevron was an unjustifiable deviation from what has been the unambiguous responsibility of the courts for the entirety of their history.
> Not everything related to interpretation should be up to the court. The court's primary role is in determining constitutionality;
No, as above, the courts role is determining the meaning of the law. The constitution happens to be the supreme source of law, but it is and always has been the courts' job to interpret law from all subordinate sources as well.
> I don't think this is correct. The court has acknowledged that Congress cannot make perfectly unambigious laws. The question is about who gets to clear up those ambiguities.
I'm not sure what you are saying you don't think is correct. No one claimed that Congress makes perfectly unambiguous laws -- that is impossible. Rather, Congress passes statutes using specific verbiage, and the responsibility for -- and expertise in -- interpreting that verbiage and clearing up ambiguities is and always has been the domain of the courts, and absolutely not the unaccountable province of people with no expertise in statutory interpretation who have an inherent interest in interpreting their own authority to be as expansive as possible.
I misinterpreted your saying Congress uses specific verbiage to mean that wording is sufficient to avoid ambiguity. You keep repeating the same thing but not really addressing the core point.
I fully acknowledge the difference in opinion here. One side thinks the court has the duty to clear up ambiguity. The other thinks that better resides in the agencies. It’s literally the difference between the ruling and dissenting opinions of the court decision.
My claim is that in a modern society, clearing up that ambiguity requires domain expertise. Just hand waving it away and saying “this is the way it’s always been” (even though that’s not true since that wasn’t the case for the last 40 years) doesn’t actually address that point. So in your opinion, do the complexities of modern society not matter? If not, you’re implying we can bring back a Justice from the 1790s and they can effectively rule on issues related to climate change, the internet, genetics, pharmaceuticals etc. After all, they don’t need any domain knowledge. I disagree; I’ve steelmanned your argument elsewhere in this thread and still find it lacking. The point isn’t “to do things like they were always done before” but the “create a more perfect Union.” I think allowing domain experts to clarify complex issues, within the confines set by the court, is a better system and you haven’t done anything to explain why it isn’t. It comes across as much more about ideology than effective governance.
This is the Supreme Court that has repeatedly made subject-matter related arguments (particularly historical arguments) while ignoring the input of subject-matter experts.
As a legal dilettante I have some questions: What does this decision mean for court caseload going forward? If it will increase, how much? Is there budget for that?
There seem to be a lot of posts in this thread that are misinterpreting what the judgement means. Here's what I understood from reading it:
• This case does not affect Congress' ability to delegate defined lawmaking powers to the executive. Congress can continue to delegate whatever they want.
• It will therefore not have any impact on the speed with which the US government can pass laws.
• It does not award the courts any new powers.
• What it does is go back to the pre-1984 system in which the meaning of ambiguous rules were decided by the courts.
• It does so on the basis of a specific law called the APA, in which Congress spelled out that the courts should defer to agencies on matters of fact, but does not say courts should defer to agencies on how to interpret ambiguous law. Also that law was passed specifically to limit the powers of the executive. So, their ruling seems founded in the will of Congress.
Because ambiguous rules would have to be decided on anyway, and they were already being decided in the context of a court case, this won't affect the number of cases being decided.
I think the only way to attack this ruling would be to show that there was some law that superceded or replaced the APA, or that the relevant section of the APA itself was unconstitutional. But why would it be? As the court points out, the fact that ambiguous law is interpreted by the courts is a very old and unremarkable arrangement. The Chevron decision was the radical deviation from normal practice, reversing it just puts things back to how most people already think it works.
Case load is simply the number of active cases and therefore not limited to the number of cases but also includes how long each case takes to complete.
As this requires judges to consider a wider range of options it inherently means these cases will take longer thus increasing caseload. Further, it also means bringing these cases before the court will get more expensive as individual cases take longer.
You're assuming that judges are slower to resolve ambiguities than regulators are. My experience with regulators has been that often they not only let the law be ambiguous for years despite repeated requests for them to make a decision, but are then fond of retroactively and suddenly "clarifying" things in response to shifting political/media winds. Nor do they feel any obligation to be consistent with past rulings.
Courts are at least expected to make progress on cases as they are brought, to be roughly consistent with past case law, and they aren't allowed to just refuse to make a decision for a decade and return to it when it's suddenly in the newspapers.
None of what you mention really applies to specific court cases.
A judge can either defer to the agency involved, or spend a while digging into the underlying intent etc. The second may be “Better” or “Worse”, but if nothing else the first is faster.
It takes away power from the legislative and executive branches because it now requires an onerous level of specificity to regulate something. This decision will have lasting negative consequences.
Another user has raised the other side of my question, while exaggerated, is this more accurate as to what will happen than the thrust of my original question? Do we need to increase the budget for Congressional aides?
> The Roberts Court just decided to increase Congress' workload 100000x
No, again, I don't understand where commenters are getting this idea from. The ruling does not require laws to be unambiguous. It only changes who is responsible for resolving ambiguity (changes it back). The entire system will do about as much work as it was doing before. At a stretch, you could say that maybe some funding would need to be reallocated from regulators to the courts, but one would hope that "cost of interpreting ambiguous laws" is not a meaningfully large line item in the US government budget.
Now leaving the specific judgement aside for a second, IMHO - not worth much as an outsider - Congress certainly should write more precise laws and maybe hire more aides to help them do that. All governments could do better on that front. Clear law is worth its weight in gold for creating a stable and prosperous society because when people know what they can and cannot do it's less risk to create new companies, less risk to create new products, and less time is spent in courtrooms arguing disputes caused by ambiguity. A lot of people commenting on this thread seem to fear a general breakdown if lawmakers are required to do a better job of writing law, but my personal experience of regulation (limited but not zero) has been that laws that have gone via a parliament or Congress are already higher quality than administratively issued regulations. The idea that the former are written by incompetents and the latter by experts is an intuitive one, but doesn't seem to be borne out in practice.
Also, as a general aside, I think Americans should appreciate Congress more than they do. It's popular to take a dump on them but if you compare to other governments around the world US law is fairly high quality. A big part of the success of the US economy and tech industry is related to what Congress does and doesn't do. For example the DMCA was unpopular when it passed but it laid the foundation for the dominance of Silicon Valley today. Apparently most Americans like their own Congressman/woman even whilst feeling the institution itself does a bad job, but this may just reflect the fact that America is very large and diverse, so inevitably a talking shop where people from different parts spend all day disagreeing with each other will seem dysfunctional.
I think you are missing the big picture. This ruling is setting the stage for a new regulatory regime. The lower courts see where this Supreme Court is going and they are going to overturn any regulatory ruling that has any semblance of ambiguity in the underlying law. What matters is the direction the court is going and what it is signaling with this ruling.
By the way, requirement of minimising ambiguity, and explicit limitation of delegation are not specific to the US. High courts of many other countries enforce this very standard.
What other countries do is not something I care about as far as SCOTUS goes. We don’t have parliamentary system that most other countries have and rewriting 40 years of legislation in the U.S. is lot harder to do in than in most other countries.
This ruling doesn't say courts have to overturn decisions based in ambiguous law, it says the courts have to make up their own mind about the decision. That decision may also be that they agree with the agency interpretation and choosing to uphold it.
The lower courts see where the Supreme Court is heading and they will rule accordingly. I could be wrong. In a few years I think you will see that I’m right.
>Because ambiguous rules would have to be decided on anyway
I think the implication by the OP was that they would now have to be decide by the court instead of by the executive branch agencies. Previously, those agency decisions could be brought to the court, but they didn't have to for an interpretation. That seems like a subtle but important nuance.
It won't affect caseload so much as it will affect the balance of power in settlement negotiations. Source: I used to be a lawyer who worked in a heavily regulated field.
From my understanding of political science classes, this is how the founders wrote it to be.
Actually, it's supposed to be like this…
Congress writes laws. Executive interprets those laws and decides ambiguities on its own. Some of those ambiguities are contested so courts decide the outcome. If that court’s outcome is contested, then Congress makes a new ruling explicitly stating what they want. Then it repeats.
It’s a cycle of checks and balances that is supposed to loop back into itself.
> It’s a cycle of checks and balances that is supposed to loop back into itself.
Except that the US doesn't have a functioning legislative branch, so the corrective feedback action never happens. The justices who are making these rulings, and their clients, are very well aware of this.
Then the voters should kick the bastards out. That's the biggest check on the legislative branch, it has pretty fast turnover.
Now, if you have a population that doesn't want to elect lawmakers who will actually pass laws...well, that sucks, but it's kind of working as designed.
>> Now, if you have a population that doesn't want to elect lawmakers who will actually pass laws
The population as a whole _does_ want lawmakers who will pass laws, however that collides with the structural misrepresentation built into the US electoral system.
The fundamental problem with this statement is that it assumes both sides of the coin are the same. However, it's far easier to block legislation in the current system than it is to get it passed. Combine that with the hyper partisanship of recent years and you have a recipe for legislative paralysis.
Now, if we didn't have the filibuster or senators were assigned based on population, it would be a different matter. Suffice it to say that we already have a pretty big check on govt power via these mechanisms, so the conservative talking point of preventing 'overreach' by government rings hollow.
>>>that collides with the structural misrepresentation built into the US electoral system.
I never know quite how to respond to this, because (as an outsider) the US electoral system has been designed in a way that is misrepresentative but for very clear reasons.
Part of the 'pitch' for the smaller states to join the union was that they would retain some power, mostly via the electoral college and senate (yes, they still get over-represented in the house, but less so). If the pitch was "you get nothing and we can bulldoze your state" Wyoming would have just said "no thanks, we'll stick to ourselves/join another union". If you think of states as entities worth protecting, assigning senators per state is quite reasonable.
Fast forward two hundred years and we have a different view of states, care more for the individuals inside them, and it indeed seems unfair that Wyoming and California both get 2 senators. What's the fix?
It doesn't take a whole population to grind the process to a halt - just a legislator or two, and not passing legislation is just as important to some voters as passing legislation is to others.
It only takes a legislator or two because of the policies and procedures the other legislators agree to. They are free at any time to change their rules of procedure. A filibuster without requiring actual filibustering is a process congress agrees to have, not something prescribed for them from on high. Almost their entire process is something they have all agreed to, if congress is easily deadlocked by one or two legislators, it is because congress does not want that to change.
The problem is that we have FPTP elections which mean the alternate candidates are non-viable. Anyone who can fundraise for a successful primary campaign has enough ties to moneyed interests to become part of the swamp.
It really doesn't, but I understand this is a very popular albeit destructive way of thinking.
There is much more to you as a member of society than your single vote. You get to vote for many people in many different elections. You also can get civically engaged in many different ways.
This is just blatantly wrong. Look at how many votes it takes to seat a Wyoming senator versus a New York senator. Look at the electoral college. Look at the frozen House of Representatives size and the further imbalances this creates in favor of low population states. The compromises made to appease slave holding states have had long lasting repercussions on this country.
The electoral college is the reason that several presidents over the last 40 years have lost the popular vote and won the election. George W. Bush was one of the first presidents to do this. If you combine electoral college votes by population with our system of winner takes all then a few very agitated rural areas in a state with few populous cities can completely dictate the outcome of the election.
> There is much more to you as a member of society than your single vote. You get to vote for many people in many different elections. You also can get civically engaged in many different ways.
Civic engagement requires more than filling out a ballot
As explained in the dissent, they literally have to delegate the kind of authority in question here. It’s the hostile-genie problem: you can’t close all the loopholes in some iron-clad unambiguous way in finite space.
those loopholes and ambiguities should be left to the courts to decide with representation from both sides of the argument making their case and not some department head full of political bias and possibly an axe to grind favoring one side.
This assumes a US Supreme Court that doesn’t exist in 2024. If you want it changed, you would have to either wait till the judges change, or expand the courts.
No, their role is a lot larger than that and plenty of legal questions don’t hinge on this kind of thing. This is specifically about whether to tend to defer to agencies on the interpretation of definitions of terms and similar things related to their mandate, so long as they remain within the bounds of reason and plausibility.
A judge could go “nope, per Chevron this EPA interpretation of ‘pollutant’ looks reasonable in this context, that complaint is dismissed, but the rest of the suit may proceed”. Now they’re expected to let those arguments play out. But answering that particular kind of question definitely is not the whole point of the judiciary.
It seems crazy that Congress does not have the authority to delegate implementation details to experts. I just don't see anything in the Constitution that forbids that.
Exactly, only when convenient. A glaring example of this is when they decided that section 3 of the Fourteenth Amendment did not disqualify Trump from the ballot. The plain language is not complicated:
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No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.
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Note that this amendment provides a legislative remedy: Congress can remove the disability by a two-thirds vote. Textualism, but only when it serves their purposes.
But that’s the point! The liberal justices could rule by taking into account any number of contingent factors established by decades of precedent. But the strict constitutionalists - the conservatives - should have ruled according to the text of the constitution, which is what they constantly claim they are doing. Except it seems to be just when that happens to coincide with their ideological priors.
> The actual ruling was NOT an "textualist" interpretation at all.
That’s precisely my point. They are textualists when it’s convenient. When the textualist outcome would be unsatisfactory from an ideological perspective, then they aren’t textualists any more.
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
Anything short of "all" contradicts that.
Now you need to find somewhere that says "Oh, btw.. we didn't mean 'All' but really 'some' because Congress might give some legislative powers to other branches."
That doesn't seen like a reasonable interpretation. The power is vested in Congress, so they can use it. Delegating authority to an agent is not exactly novel and it definitely doesn't somehow mean that Congress no longer has that power.
So if I give you complete authority to design and implement a new exommerce system, it means you must do it single-handedly with no delegation to anyone?
This “anything not expressly allowed must be forbidden” is the exact opposite of how US law works.
Do you understand the implication of the answer to that question being "No, and it cannot delegate those powers"?
Congress would have to vote on giving approval for each new drug, not the FDA's bureaucrats.
Congress would have to vote on each individual edge case for welfare programs (SNAP, Social Security, Medicaid, etc), not their respective agencies.
Congress would have to vote on which individual people get Pell grants, how much, and how much their parents are expected to contribute to their university schooling, not the Department of Education.
Congress would have to vote to approve contracts for every federal agency.
The federal government would not function without some degree of delegation.
You don't change the law every time a new drug gets approved, you grant it certification (the framework of which is based in existing legislation). You'd only need Congress to get involved if you wanted to change the approval process itself
The constitution arguably wasn't designed for a government that did much of what it's doing. Shouldn't be hard to pass an amendment to legalize it if it's that necessary right? We needed an amendment just to federally ban booze for God's sake.
The problem I have—even with a functional Congress—is that laws will be passed with political kickbacks in mind. Irrelevant nonsense like dairy subsidies tied to telecommunications regulation to secure the necessary votes.
If you ignore the labels here, it's a small group of lawyers giving themselves more power because the large group of politicians can't get their act together and pass well-reasoned and descriptive laws.
So the large body isn't functioning well and the small body doesn't trust it anymore. So if we make the small body (the supreme court) large like the large body (congress) will that actually fix the issue?
Isn't the issue that politicians are corrupt and ignorant of actual expertise in the areas of the laws they pass? How will the Supreme Court overcome this same issue?
Congress may be inefficient (by design, basically) but they have one advantage: they're elected. Everyone fantasizes about government by an unelected group of experts, until they wake up one day and find out those unelected experts don't share their values at all -- and there's nothing they can do about it.
This implies the common false dichotomy though that public officials can only be either: elected in toxic, wasteful campaign cycles every 4 years; or completely independent of public oversight. Those aren't the only two mechanisms that exist to develop an administrative apparatus. They are actually two points on a spectrum, and in fact closer to being at either end of the spectrum.
One, quick example: You can have appointed experts who can be recalled by public input but never have to campaign for election. I'm writing this in short minutes with zero research so be assured there are countless possible systems that exist in the infinite space between the two binary options implied by your dilemma.
In other words, being elected to office is not the advantage of congress. The advantage we seek is public accountability. Public elections are a pretty fucking poor proxy for accountability though because we end up with single-issue voters acting out of rage and electing people who are specifically inept at their job.
> Everyone fantasizes about government by an unelected group of experts, until they wake up one day and find out those unelected experts don't share their values at all -- and there's nothing they can do about it.
When your opponents are lying, cheating, and breaking their own made up rules (no supreme court nominees during the lame duck session unless nominated by a Republican) your characterization is uncalled for.
Yes, the right have been doing it for a long time and it works. Either make it stop working, or copy the thing that works. Don't just handicap yourself to a guaranteed loss.
The rules are that the executive can appoint judges. Right wing executives take advantage of this rule. Doing the same from the other corner seems reasonable too. The failure to do so means that the Democratic party is incompetent, uninterested in enacting their own alleged policies, or some combination of the two.
Some people say "if you're not cheating, you're not trying" but this is even a level removed. This is a perfectly legal move that they've denied themselves for no material reason.
Appointing people based on party loyalty is always cited as one of the major reason the Soviet Union became a slow-motion train wreck. It's not something America should emulate.
Not to mention that packing the courts could well be interpreted as an open attack against the separation of powers
superficially this argument seems reasonable.. but my limited understanding of the history of the Supreme Court of the United States says that there have been substantially different eras, and substantially different rules in those eras, for this same Federal body. Needless to say, in a "two party" political system, the details of what each of those two parties represents has also changed dramatically.. i.e. what is called conservative has changed quite a lot, many times.. same with "liberal"
The issue is that the "ethics and morals" of the powerful are in reality weapons pointed at working people. If using state power gained through elections to improve the lives of the people who elected you is immoral or unethical, your system of ethics is a farce.
Indeed they have already done so - many left-wing voters are swearing off voting for Biden, over his support for the Gaza genocide. This guarantees a Trump victory.
You may trust the nation's top lawyers more than Congress. But in recent decades those lawyers have been picked for ideological purity in a process that distills what is bad about our political process. As a result I now trust Congress more than the Supreme Court. And not because I trust our broken Congress more than I used to!
> I would trust the nations top lawyers more than most of the congress members we have
If you're referring to the justices, who are approved by those Congress members you don't trust, it is a dramatic stretch to assume they are the nation's best lawyers.
There's no federal constitutional requirement for anyone to have legal training or certification to practice law in the USA.
The requirements to practice law in the federal system are set by the judiciary itself. This dates back to England where getting "called to the bar" meant the judge giving you permission to go to a physical bar separating the spectators from the court.
It wouldn't make sense to mandate judges to be lawyers if they decide who is and isn't a lawyer. That would give the judicial branch control over their own appointments.
This is taking power away from regulator bodies like EPA that enforce the laws and giving it to the courts... taking the enforcement out of the hands of the experts.
How is it "taking the enforcement out of the hands of the experts?" Judges are supposed to be experts on law. That's literally their job. If the parties before them feel that they need expert knowledge to render the right ruling, then they need to take those experts and either depose them or have them testify. Expert witnesses are a thing; this is not some new idea.
> How is it "taking the enforcement out of the hands of the experts?" Judges are supposed to be experts on law.
Because the laws are about particular things in the real world that have nothing to do with the legal system. They are frequently about scientific matters, for example. What constitutes a threat to public health? What constitutes pollution of a waterway?
When Congress authorizes an agency to maintain, say, clean drinking water, it entrusts scientific experts to determine, based on the most up-to-date evidence, what constitutes a pollutant that is harmful to human health. We do not need Congress to pass a new law every time we get new scientific evidence that a particular chemical (say, PFAS), is harmful.
They did do that, every agency exists with a mandate.
SCOTUS just decided that despite the madnates existing, being funded, and being regularly renewed, that's not good enough.
But they haven't defined how specific the mandate and laws must be. They can just, you know, keep shifting the goal posts until they get the desired result.
Because this is not law in terms of billy having stolen a bushel of apples, and the expert is not called on to evaluate the value of the apples in order to determine whether billy is below or above the line for a class 3 misdemeanour.
The statutes regulating agencies are generally broad signposts, giving the agency a mission statement and a direction but leaving it a large latitude to implement it and decide on the details. That latitude has a legal implication since the agency is generally responsible for setting and enforcing standards.
The Chevron Deference is the legal doctrine that since congress delegated its power to the agency as matter and implementation experts, the agency's policy decisions should be deferred to so long as:
- it's legally ambiguous aka congress has not answered the precise issue themselves
- it is a permissible construction of the statute
The entire point of the chevron statute is that it's not up to the judicial branch to set government policy, and if a problem is a legal void then they have no authority, and unless and until congress makes a specific decision the agency does.
The US is a constitutional republic, not a dictatorship of experts. Go to Singapore if you want that.
What I find funny is how the court is simply asking Congress to do their job - be clear in the intent of how laws should be executed. None of this "well, I'll leave it up to unelected bureaucrats to decide" and people think this is somehow a bad thing.
"is a legal test for when U.S. federal courts must defer to a government agency's interpretation of a law or statute."
The idea Congress could pass a law "you can't pollute", and then a all of the legal details behind it aren't actually a part of the law, but rather "administrative decisions" by unelected state apparatus is a run-around of the system.
Congress can still pass such laws, and bureaucrats can create rules. The only difference is now the courts can overturn their interpretation.
Because congress cannot predict which new chemicals will be invited. They cannot act quickly enough to actually adapt to realities of the world today.
Is CO2 a pollutant? Who decides? Congress or scientists? Judges or scientists?
Now do that for every tiny detail of every part of every law.
It is computationally intractable to write laws specifying every possible scenario and exactly how an agency should act.
I don’t think you realize that these laws were passed with the understanding that agencies would fill in these gaps. Congress wanted these agencies to make these decisions at the time these laws creating said agencies were passed.
But, this decision didn't take those powers from Congress. It took those powers from federal agencies. Congress empowers the agencies, yes. But, Congress also deferred any technical decisioning to the agencies. Those agencies are filled with actual experts who are fully committed to their field. Now, the court just said that those experts aren't the right place to enforce anything but judges are.
>Personally, I would trust the nations top lawyers more than most of the congress members we have. However, it doesn't take much imagination to see the new issues that could arise)
Good luck with this.
At least these corrupt politicians come to face the music every four years.
> because the large group of politicians can't get their act together and pass well-reasoned and descriptive laws
How do you figure? This ruling says that Congress must be domain experts in every area, and agencies must merely implement the specific policies that Congress dictates.
Is that even possible? For anyone? Sure, Congress is dysfunctional but so what? This new regime is unworkable, and it doesn't matter if it's dysfunctional politicians or "top lawyers".
People on this thread are talking as if this decision stops Congress delegating powers to the executive, or the executive drafting laws for Congress to pass. It clearly does neither.
It's actually constitutionally entirely reasonable to demand that lawmakers are the people who make law, because there's no specific reason to assume that the volume of laws should naturally drown the people responsible for them. But even if you do assume that, nothing in this judgement would restrict the volume of laws passed in any way. It's just not about that at all.
The "volume of laws" required to regulate a complex modern society is far greater than that required for the US 200+ years ago. Thats why successful nations use rule-making agencies to regulate commerce, environmental protection, workplace safety, etc. Expecting the legislature to do it all is just not going to scale - which I suspect is the objective. The people behind these decisions want an overloaded, ineffectual legal system because that creates the best conditions for unrestricted accumulation of wealth and power.
I think you're missing the ideological motivation. It's all about ensuring a healthier system of checks and balances. When courts are forced to defer to unelected bureaucrats, they serve basically no purpose - yet our entire legal system is supposed to be predicated on checks and balances at all levels. By returning the ability of courts to hear and legally judge the merits of law, at their discretion, you help maintain an overall healthier system of checks and balances.
It all comes down to centralization vs decentralization. In a completely decentralized system you will never have an amazing outcome, because there will always be plenty of people doing stupid things - this includes judges. Yet you will also never have a horrible system, for basically the same reason - there will always be plenty of people doing 'smart' things. By contrast, centralized systems can yield a complete utopia under the oversight of socially motivated, intelligent, and highly capable leadership. Yet they can also yield the most unimaginably horrific dystopias under self centered, foolish, and incapable leadership.
So which does one prefer? In the end I suspect this is one of those issues where we all think other people think the same, but they most certainly do not. I personally could not imagine anything other than a system decentralized, to its greatest extremes, in every way imaginable. Because if I look at the political types of modern times "socially motivated, intelligent, and highly capable" are not generally the first words that come to mind.
> The "volume of laws" required to regulate a complex modern society is far greater than that required for the US 200+ years ago.
I'm not going to get into debating this directly, but please be aware that arguments about the complexity of society are ideological in nature. It's not a simple factual matter on which there's widespread agreement. Many conservatives don't even agree with the premise that society has such a thing as complexity, or if it did that there's a higher level today than in the past.
The desired effect is to break the federal government so states that want to e.g. pollute the environment and leave the poor uneducated can do so without interference.
But that means they would never be done with any law. Rather than creating the EPA in the 70’s and funding and authorizing it to do its thing, every session of congress would have to consider every topic that comes before the EPA every year.
This might be a cynical view of things, but I think it's planned, rather than a happenstance result of dysfunction. Gosh gee Willikers, the fellers in congress just can't get anything done ¯\_(ツ)_/¯
It's no coincidence that Republicans simultaneously obstruct congress AND have a well-oiled machine to get their political allies on the bench. The playbook is like this:
- The Federalist Society establishes a pipeline of ideologically consistent judges. From law school to the supreme court.
- Congress blocks anything and everything on the legislative, so that any actual new change to the laws of the land come from new interpretations by the courts.
- This bloc in the lower courts works to bubble up good cases when they come, to get them before the higher courts.
- Every time there is a Republican in the executive, they appoint as many judges as they possibly can from this ideological bloc [1]. This ensures that a good case, when it comes, has a clear path from the bottom (local) courts to the top (supreme) court. The merits of appointees do not matter in the selection process - only a pledge of ideological fealty.
This project has been actively working for decades to change policy. There is nothing like this on the other side of the aisle. These are lifetime appointments. You cannot win on "good faith" against tactics like this. "Good faith" is insisting that the Judicial is "not political," it's not stepping down when it's politically opportune to do so.
[1] "At the 2018 Federalist Society gala, Orrin Hatch, the former Republican senator from Utah, declared, to the crowd’s delight, “Some have accused President Trump of outsourcing his judicial selection process to the Federalist Society. I say, ‘Damn right!’”https://www.nytimes.com/2020/05/20/opinion/trump-judges-fede...
Obvious check #1: Congress gets its sh*t together, and stops writing endless vague blather into law.
Obvious check #2: Congress enlarges the Supreme Count to 21 Justices. And lets the President know that his nominees for the 12 new positions will need to understand who's the real boss.
Why stop at 21, why not get 1 supreme court from each state? You could get 2 if you wanted to be spicy and setup a sort of room for them all to debate in. Then after they heard the debates they could vote on the matter and if it passes it gets written into law. A sort of congress...
Increasing the size of the court isn’t a slippery slope to somehow making justices elected by states/districts. It’s not like as soon as you get too many justices it turns into a legislature.
The interesting differences between the legislative and judicial branch is not the number of people (moreover, the Supreme Court is not exactly the entirety of the federal judicial branch).
I was thinking "enough to routinely overrule the current 9 Justices".
Representing individual states, as such, is supposed to be the job of Congressmen. And - with how low-functioning Congress is looking, these days, patterning anything new after them is probably a bad idea.
So Congress is dysfunctional. The Supreme Court is semi-functional, but functioning in a way that you don't like. So you want Congress to vote in a bunch of new people to fix the Supreme Court. Why do you think that will work, instead of be ruined by the usual Congressional dysfunction?
And, if the party in power adds enough Supreme Court justices to routinely overturn the current 9, what makes you think that when the other side is in power, they won't add enough to overturn your 12?
The Supreme Court is not supposed to bend with the wind of every political election. It's by design.
Particularly given McConnell's... Interpretations... Of how his obligated duties were fulfilled in regards to the timeliness of actions taken to ensure that such seats were filled.
Are you asking if it did bend to the right? You’re asking if an additional conservative vote shift in a hairline composition shifted the balance? Would you be asking the same if it was a 6-3 liberal majority?
This courts been in power for 8 years and has overturned 3 major ways that the government operates:
1. Roe v Wade overturned so that the government is back in charge of reproductive rights decisions instead of leaving it as a deeply personal decision for a family to make on their own. There’s pretty clearly a lack of any evidence that late term abortions are a cavalier thing. When it gets that late it’s not a change of mind thing 99.999% of the time.
2. Brady and similar decisions basically removing congress’ and states’ abilities to regulate guns
3. Chevron doctrine overturned so unless congress writes impossible laws the courts get to arbitrarily define ambiguities even though it was delegated to the executive to create justifiable well researched exposition of those ambiguities.
Basically, this court has already delivered 3 major decisions shifting American politics in pretty drastic ways in the 8 years. This is certainly not a liberal or status quo court.
And the court itself has serious perception issues of accepting gifts and bribes (and significantly reducing the definition of what counts as corruption in the first place, which is well outside their mandate considering these are actually laws congress passed). They’re badly in need of cultural reform as is congress and in both scenarios adjusting the number of representatives and the number of justices is called for to relieve the pressure that’s been building.
Don’t forget that they legalized bribery as well. Just so long as the payment is made after the fact it’s considered a “gratuity”. This court is making drastic long reaches changed and overthrowing precedent whenever convenient.
> The high court’s 6-3 opinion along ideological lines found the law criminalizes bribes given before an official act, not rewards handed out after.
> “Some gratuities can be problematic. Others are commonplace and might be innocuous,” Justice Brett Kavanaugh wrote. The lines aren’t always clear, especially since many state and local officials have other jobs, he said.
> The high court sided with James Snyder, a Republican who was convicted of taking $13,000 from a trucking company after prosecutors said he steered about $1 million worth of city contracts to the company.
Roe v Wade and gun control are pretty classical cultural war stuff from the 60s and 70s. I’m not sure where you’re getting it but the left being pro choice and the right being pro life are classical left/right distinctions in America since at least Roe v Wade or shortly thereafter. Similarly, gun control also became a classical left/right distinction once the left decided that gun ownership was a public safety problem and the right decided that personal gun ownership is enshrined in the Constitution.
Can you clarify how these aren’t left/right distinctions?
it removed restrictions on abortion, allowing local parties to decide for themselves, it seems constitutional but not partisan, RvW was also an abortion ban don’t forget
By what reasoning is RvW an abortion ban? It was a ban on abortion bans but that’s very different. The only restrictions Dobbs removed were those impeding bans. If you listened to the debate, Trump said pretty clearly he’s against late term abortions and if the right takes power next year a federal ban superseding local parties seems inevitable. So you have to jump through a lot of mental hoops to pretend like Dobbs was anything other than a step on the road to a full federal ban on abortions (first it’ll start at something like 16-24 weeks and gradually be shifted earlier and earlier and you’ll claim “well technically they didn’t ban abortions altogether”).
As for constitutional but not partisan, it was a 6-3 decision along ideological lines. And famously the criticism from the left of Roe v Wade was that it found protection in the wrong parts of the constitution - that it was based on privacy and physician rights instead of women’s rights. So you’d have to be willfully trying to deceive to paint this as a non-partisan issue.
You act as if this is the first time that expanding the court has been discussed.
Congress has yet to do this because it will never pass - at least unless one party gets a filibuster-proof majority in the senate or the filibuster is removed.
> And lets the President know that his nominees for the 12 new positions will need to understand who's the real boss.
And who, in your view, is supposed to be the real boss? Congress? Or the President?
The Supreme Court is supposed to be independent. Changing that needs a much higher threshold than "bell-cot doesn't like some recent Supreme Court decisions".
I have a fantasy solution that I know will never be implemented, but in my mind resolves all objections to expanding the court.
Promote all eleven judges in the DC circuit court of appeals to the Supreme Court and leave the appeals court empty. For each vacancy that occurs on the Supreme Court, the president gets to pick one judge for the appeals court, until the Supreme Court justice count is back to 9 and the appeals court judge count is back to 11; at which time things go back to status quo ante.
This would allow the Supreme Court to be rebalanced without the president packing the court with partisan choices. Rather, it respects the record of judicial confirmations for the appeals court going back almost 40 years and several presidential administrations.
It would increase the number of perspectives on the court and make the Justices work harder to find consensus, rather than the majority being able to lazily fall back on pet legal theories that are out of the mainstream.
It would counter and largely nullify the Republican strategy of targeting the Supreme Court with nomination of extremist and underqualified candidates with significant questions about their backgrounds, and confirming the nominees with dubious political maneuvering.
It would be hard for Republicans to escalate; i.e., if a Democratic president added 12 slots to the Supreme court, what's to stop a Republican president and congress adding 20 more at first opportunity, and so on. Republicans could choose to elevate another court's judges to the Supreme Court, but that would tend to further balance the Court and make decisions more unpredictable, rather than produce a clear partisan advantage.
It would take the Supreme Court nomination issue out of presidential politics for a generation.
Despite FDR being quite popular with his New Deal laws, his own party was prepared to toss his ass out for trying to stack the Supreme Court in order to keep parts of his New Deal alive.
It would be political suicide for either side to do that.
Complaining people have been suggesting it for a long time. They seem to be of the "anyone who doesn't agree with me is obviously either stupid or evil" type.
I'm with you, though, that it feels more possible than it ever has before. If it does actually happen, it's going to be a huge change. The Supreme Court will no longer have any believable claim of being unpartisan, and democratic norms will be broken in a much broader way than ever before (barring January 6).
So if it happens, take note. America after that won't be what it was before it.
There are so many things happening in America in just the past 6 years that it’s nothing like anything that has happened in existence - each year.
I have never seen an insurrection in America. Legislators in the American Capital had to be evacuated not from an invading army, but people with some plan to overthrow them. Trump alone is so dense with examples of “wont be the same” that I can only think of fractals when I try and list the things that have happened.
The US went through a civil war. A President was impeached. The US was defeated in a war in Asia. We had race riots every few weeks. National leaders were assassinated with alarming regularity.
The idea that the last few years have been "nothing like anything that has happened in existence" seems quite naive.
> Legislators in the American Capital had to be evacuated not from an invading army
And some even claimed to be there who weren't for political points.
Exactly, the statement is very telling of the lack of understanding of how our government is supposed to operate, how and why the system is set up the way it is.
Congress would have to agree that the power really belongs with them, and agree to limit the Court to only that which is covered in Article III. This is entirely plausible, but I think unlikely in the short term.
It sounds to me like they just gave the legislative branch some of it's responsibility back. Delegating their job to the executive branch of government has created agencies that make and enforce rules themselves, and ultimately operate at the whim of whoever the president happens to be at the time.
If congress wants to delegate details to experts they could explicitly state that in the law, and create their own organization of experts to do the job. Giving the president more power is not a requirement, and enforcement should remain separate. But even then, regulations shouldn't be ambiguous. The laws should state something like "food purity should be within %x of yada yada, where x is updated yearly by the appropriate agency" Then it's up to the courts to decide if the law was broken or not.
In the short term this could be a nightmare as companies flaunt all sorts of regulation, but I think overall it is a good thing.
> The laws should state something like "food purity should be within %x of yada yada, where x is updated yearly by the appropriate agency" Then it's up to the courts to decide if the law was broken or not.
This is kind of true, but also belies the depth of the Chevron change. In this example, plaintiffs can now, for example, challenge how the "X%" calculation is done. What's an appropriate methodology?
In the past, courts deferred to the agency: as long as it's scientifically valid + consistent, it's up to the regulator, not a judge. Now, it's up to a judge.
So if I sue and say "you should use a 0.01 alpha for calculations, not 0.05" for your X% calculation, then a judge makes the methodological decision, not the statistician.
IMO, it's not really reasonable for congress to design statistical methodologies as part of the text of a bill.
but if congress explicitly states that agency xyz will update specific numbers wouldn't that be pretty solid? As far as I can tell, this is just about leaving it up to the courts when things are ambiguous, which is kind of the point of courts.
Sure, but "EPA to determine methodology, including statistical parameters" is still ambiguous.
What's the process for determining the methodology? Would another process have been better? Does the plaintiff's proposed approach for methodological determination also conform to this law?
In this case, "how to go about determining methodology" is left ambiguous, and is now the province of the courts, not the EPA.
The only checks involved were in the mail, and almost certainly addressed to Clarence Thomas, who has taken more in bribes than the last 30 other justices combined, and that’s only the ones he’s been caught on.
This is the Supreme Court that claims, "In the summer of 2023, Justice Samuel Alito told the Wall Street Journal that Congress has no authority to regulate the Supreme Court, despite the ethical regulations Congress already imposes on the justices" (https://www.brennancenter.org/our-work/analysis-opinion/alit...) and that does not have any binding code of conduct.
That’s exactly the argument of this (exhaustive) Harvard law review piece from 2022, that the sole pattern of the supreme courts decision making is that it accrues power to itself at the expense of other branches of government
> Chevron is probably the most frequently cited case in American administrative law,[16] but some scholars suggest that the decision has had little impact on the Supreme Court's jurisprudence and merely clarified the Court's existing approach.
The judgement discusses that. Previously in cases where a statute was ambiguous the courts interpreted it. Chevron changed that to allow the executive to interpret ambiguous laws, but the judgement argues that interpretation of the law is and always has been the role of the courts.
Others have said this using different words, but I'm going to chime in anyway. I don't think the courts will have more power. SCOTUS is saying that congress needs to actually make clearer (better?) use of its power by being more explicit when legislating (i.e. when writing laws) instead of relying on the executive branch agencies (for those unfamiliar with the US political structure, agencies like the FDA, EPA, etc. are executive branch agencies that, ultimately, report to whomever is the current US president) to interpret and in many cases read into the laws that congress has passed.
The more practical reality of this ruling is, I think, this: there is no world where this is a win for anyone who believes in a bigger US federal government. This is a huge win for those people who believe the power of the federal government should be limited. It's likely the biggest challenge to the size of the federal government in my lifetime and I've been alive for a good bit. The dysfunctional congress that the US currently has makes it a certainty that in the short term countless regulations will be unenforceable and therefore this will be a picnic for anyone who is anti-regulation (note Trump in the debate last night where he talked about scrapping regulation. In comparison to this decision, Trump's regulation-slashing will look like he shot a rifle in comparison to the shotgun SCOTUS just fired).
Last comment: this SCOTUS has made it clear that the federal government will be massively restrained. There are two avenues by which they've made this clear: first, they have ruled very aggressively in favor of state's rights (especially when it comes to social issues like abortion), and, second, with this Chevron ruling, federal agencies will not be able to make decisions unless there is explicit intent in the laws that congress passes.
I'm having an extremely difficult time wrapping my head around just how epic of a change this SCOTUS has brought to the way the US population is governed, at both the state and federal level. Hard to really comprehend the gravity of the coming change, which will take decades and decades to fully understand.
> This seems like the judicial branch just voted to give itself substantially more power.
100% this but it's not new. This court claim to be "originalists" or "textualists" (even though "originalism" was invented in the 1980s) but has made a massive power grab that we will feel for decades. The "originalists" invented two new doctrines to justify this:
1. History and tradition. Basically the court decides if how something was in 1780 as a legal basis for interpreting the constitution and law. Remember at this time some peoplw were property, women couldn't vote and there was no interracial marriage. This is the "history and tradition" the court seeks to return to; and
2. The major questions doctrine ("MQD"). This has gives sweeping powers to the court to say that even when Congress defined clear language if the consequences are "large" (as the court determines it) then the court can step in and say that Congress wasn't clear enough so the court gets to essentially write legislation and overrule both the legislative and executive branches. MQD was used to justify blocking student loan relief despite Congress giving the president and the education secretary expllicit powers in this regard.
The courts just remedied a situation where the executive branch of government had arrogated to itself powers reserved to the legislature by the Constitution.
Notably another case ruled on this week did the same thing, by invalidating many agency-specific “administrative courts” and restored the rights of citizens to seek redress in actual courts.
I and many others believe that executive branch agencies (“the federal bureaucracy“) has become an out-of-control unaccountable 4th branch of government, and I for one am delighted to see them reined in.
Note that agencies will still be able to perform enforcement; they just have to stay within the bounds set by laws and they will no longer be the sole arbiters of those bounds.
Hey, that was the goal and plan of the various organizations that got these judges in place.
I mean, what checks and balances apply to focused, dedicated, funded campaigns and teams, supported by backers willing to spend multiple decades and the millions necessary - to over turn laws, win minor elections, get judges into lower courts? People spent the time to understand the system so that it could be changed in a way they think is superior.
The SC situation is the fruit of such labor.
The shortest path solution to something like this is still decades long.
No, that isn’t the case. It is saying that regulatory agencies cannot exceed their authority and act like the judicial branch. In other words, it was the executive branch that had taken more power previously.
> It is saying that regulatory agencies cannot exceed their authority and act like the judicial branch.
On any given matter there are, at first, no laws on a given subject. Before airplanes were invented there were no rules or regulations for airplanes (FAA); similarly, pre-radio, nothing about how to use EM fields (FCC).
Now, The (US) People gave The Congress authority to make laws on any subject (limited only by the Constitution).
Congress said we will make laws limited actions on Topic X, and when non-prohibited actions are done they must be done in certain ways as prescribed by regulations. Congress further said that they cannot, ahead of time, know every situation that might arise on Topic X, but further rules may be needed.
So Congress delegated further rule making, beyond the 'base' An Act to Regulate Topic X, to an agency that Congress itself created and funded via the above Act.
An agency only exists because it was created by Congress; it only runs because it is funded by Congress. Congress says, in particular Acts, that some agency should look after the details of Topic X so Congress does not have it.
Regulatory agencies have (limited) authority because it was given to them by The People (through their elected representatives).
Couldnt they just do this formally? Afaict scotus didnt rule it's unconstitutional for congress to explicitly defer, but the derefence, which originated in court precedent, isn't good.
Theres nothing stoping congress from explictly defering either via act or in the act. Right?
All this says is that if Congress defers something to a branch, and there is ambiguity, and it comes in front of a judge, the judge does NOT have to accept the branch's interpretation of the ambiguity, and can instead judge it as judges do.
Chevron said that if the branch had a reasonable interpretation (e.g, not batshit insane like saying "no arsenic in water" means "at least ten pounds per gallon of arsenic in water") then the judge should defer to it. Now the judge can but does not have to defer to it - if he pushes back, Congress can clarify the law.
This has been done many times in the IRS, where people find a "loophole", the IRS tries to patch it themselves, the courts say, yeah, nah, and then Congress amends the law to remove it.
> All this says is that if Congress defers something to a branch, and there is ambiguity, and it comes in front of a judge, the judge does NOT have to accept the branch's interpretation of the ambiguity, and can instead judge it as judges do.
So the Judicial branch has now taken on the task of determining policy, contra what was said in Chevron:
> When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency's policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges—who have no constituency—have a duty to respect legitimate policy choices made by those who do. The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones: "Our Constitution vests such responsibilities in the political branches."
So if Congress makes something explicit it is a policy by The People (through their elected representatives), and if there's some ambiguity it might be done purposefully by The People's representatives (Congress), with the explicit and implicit idea to have an agency deal with it. The agency is run by The People's Executive choice (President) or administrators (Secretary, Director, etc) agreeable to The People's representatives (via confirmation hearings).
It isn't simple. The judgement states that broad implied deference to the agency of the act in question, per Chevron, is incorrect and the courts decide in the those case.
There were a ton of arguments that interpretation, in general, is an Article 3 right of the courts. Though, I'd assume if congress explicitly granted interpretation to the specific agency of the act, we'd have a separate case on whether they're allowed to do that (explicitly defer).
A textualist interpretation would be that indeed congress is now stopped from that, as anything that isn't described without doubt in an act of congress is now up to court to decide, not delegated agency.
Not "taken". It was inherently granted by Congress on the joint understanding that the intent was that agencies would engage in rule making to decide areas left undefined within the scope of the law as written.
Regulatory agencies are responsible to Congress, the Legislative Branch that has the power to adjust the law to reflect its intent. Judges are not. The understanding is that it is the agencies that are intended to have the best understanding of what they regulate, not judges.
Laws were written with this assumption in place, which the Court has just rug-pulled from the operation of the US government.
What Chevron said was that when the legislative branch gives an agency power to do X and there is some disagreement between the agency and someone else over precisely what X means and the agency's interpretation is reasonable the courts should use the agency's interpretation.
> In other words, it was the executive branch that had taken more power previously.
If I may disagree: it was the legislature that gave the executive branch power, and the judicial branch that essentially approved such an arrangement (unanimously) in the original Chevron ruling.
> If I may disagree: it was the legislature that gave the executive branch power, and the judicial branch that essentially approved such an arrangement (unanimously) in the original Chevron ruling.
But the only way to properly do that is a constitutional amendment.
To give an extreme though-experiment example: Lets say Congress 1) packed the Supreme Court with yes-men, 2) passed law giving themselves a huge pay raise and delegating all legislative powers to the President, while they go party. Didn't it just create a a king/dictator? Wouldn't that be unconstitutional?
> But the only way to properly do that is a constitutional amendment.
A constitutional amendment make it permanent, but Congress never actually lost control. They always had the power - and still do - amend, restrain, clarify their own laws.
> Didn't it just create a a king/dictator? Wouldn't that be unconstitutional?
In a scenario with a packed Supreme Court of "yes men" there are no bounds to what could happen, so why bother with the thought experiment? In your example, the constitution is already worthless.
That isn't the question that matters. What matter is what do we do with that knowledge? Because right now, the answer isn't a whole heck of a lot.
Systematically comparing schools on any metric accomplishes nothing. And every year for decades we act like we just need to identify the good schools and replicate their success, with literally actual regard given to what makes schools successful in the first place: functioning administration, involved parents, good and stable teachers. After that, curriculum and resources.
And a functioning administration is generally what gets sacrified first in pursuit of some across the board improvement in some flavor of the week metric.
I agree gaming the system is always a temptation with accountability systems.
I’m not sure it would work like how you are proposing, since purposely stunting a student would penalize the school exactly as much as they would “gain” as the student catches back up.
Also, the SBAC test administered in California, Washington, and many others is now adaptive, but still schools are measured based on point-in-time aggregates.
I can elaborate a little bit but not a lot since that would be essay-length. I can simplify and explain roughly.
The short story is that most states assessments are designed almost as binary measures, to see if students are above or below a cutoff threshold set by Common Core State Standards. They're designed to measure schools, and in particular, to flag failing schools where kids aren't meeting standards.
They're very good at that, actually.
However, that's almost meaningless as a measure for kids well above or below standards, or unaligned to standards.
"Growth" is almost meaningless here. If I know one number is less than three and another less than four, I can't subtract them.
It's more mathematically fancy, but that's the jist. It gets even worse since measures constructs are highly multidimensional and different dimensions are measured each year. It's like subtracting apples from oranges.
It also encourages the wrong behavior. For kids behind, I'll get the best "growth" by discussing on grade level material and leaving gaps for what kids failed to learn before. I'll also do well to ignore my students who are ahead. Indeed, students who did week last year will inevitably hurt my "growth."
As a footnote, I would not call this a strong claim. Talk to a psychometrician and you'll see it's common knowledge.
If adaptive tests move beyond those few states, the problem goes away.
For those interested in this topic, I’d strongly recommend Bryan Caplan’s “The Case Against Education”: https://press.princeton.edu/books/hardcover/9780691174655/th.... He does a much more thorough analysis of the value of a college degree than any other I’ve seen, including factoring in dropout rate, majors, meeting potential spouses, opportunity cost, university prestige, etc.
The summary aligns with common sense: college degrees are typically valuable, especially in in-demand fields and from prestigious universities. But the college dropout rate is around 50%, so many people incur the cost of college with little of the benefit.
If you’re a high schooler considering college, it’s worth it if you are “good at school” and so confident you can finish in four years and are going to a high quality state school or better. Otherwise, you’re better off going directly into the workforce.
Not just meeting potential spouses. Having studied psychology has helped my romantic relationships in odd and intangible ways. For 1, talking to women I didn't know was easier because while they couldn't relate to my programming interest, they could relate to my psychology interest. For 2, it was just easier to find someone given that you were in an environment were 80% of your students were female (me being male).
But what also really helped was knowledge on anxious/avoidant attachment styles or how intuition is works (I read a lot about Kahneman's research papers - not his pop science books). By understanding how intuition works, I was able to train it through meditation (I could get the academic sources but this would become a lecture). When I got a stronger intuition I could relate better to people in general that use their intuition as their default mode (something I never did as a kid).
Psychology also has helped me with some mental health issues long after I graduated from it. I was surprised because I wasn't that interested in the mental health aspect when I was studying it (I liked neuroscience and statistics). I recognize mental issues with myself early so I can start acting on it early as well.
This is the tip of the iceberg. My point is: I never expected these benefits. But they are very very real. Moreover, for some these benefits do not pan out this way. A friend of my also studied psychology and would've loved to have a girlfriend at the time but it didn't work out for him. In my case, it helped that I was a bit socially bold. I was socially insecure as well but it doesn't matter that one is insecure when they are socially bold (I can say that with hindsight, haha).
Your point cannot be echoed loud enough on discussions of college prices and debt forgiveness. Instead, the too responses on such articles are always someone ranting about the lunacy of putting yourself $115k in the hole for a Bachelor+Master’s of Social Work only to manage a Home Depot followed by someone else pointing out that people graduating with that much debt are almost all physicians (plus a few lawyers).
Dropouts, by definition, do not have the degree to earn that salary bump. Those who go on about rule of law and the sanctity of contracts or whatever are willfully blind to the point that forgiven or not, those loans to the dropouts aren’t getting repaid.
Heck, you can even see the same thing to a lesser degree for students who do graduate but with a 2.3 GPA (especially if it’s a field that de facto requires a Master’s).
I understand the phrase “feedback is a gift” differently than the author: people are not obligated to give you feedback. If someone has taken the time to give you feedback, this is a generous act, regardless of whether you agree with the feedback or find it helpful.
Yes, plenty of (bad) feedback is given in good faith, but I think there's a line where generosity ends and "feedback" becomes a hurtful one-sided channel of emotional venting. It only serves one person, at best.
Would you call it a gift if a visiting neighbour brought a smelly trash bag to your door while screaming at you for "looking like a dead squirrel"? They certainly took the time to carry that leaky bag, think of a sequence of helpful words to tell you, and even risk damaging their vocal cords! They certainly weren't obligated to do so, either. A slap in the face isn't necessarily "a generous act of ancient Egyptian medicinal practice to prevent disease".
We don't have to accept all "gifts" as gifts, so we certainly don't have to call any hurtful garbage as "feedback" in the first place. We don't have obligation to take it as a generous act, either -- wouldn't this make us feel guilty about feeling hurt?
I don't intend to be mean or snarky. Your comment made me think and come up with this sort of "insight".
Your comment made me think as well! I suspect we might be caught in a definitional discussion of the word “feedback” - feedback is a subset of “words someone says to me”.
My working definition of feedback is “things I tell you about something you did with the intent to help you do better next time,” which does warrant the “feedback is a gift” mentality, even if the feedback is poorly delivered, misguided, or wrong. The opposite of love is not hate, it’s apathy.
As other have mentioned, sometimes people say things to you that are not feedback, and are primarily them seeking status, expressing hurt, etc. a caution though that “this person is just having a bad day” is an easy, universal response for dismissing valid but critical feedback.
There is an industry of some people, rather than looking to provide feedback which accurately reflects the merits and flaws of a given work, who seem to deliberately hate-review everything to a) get clicks, and b) try to make themselves sound smarter than the people who create stuff. It doesn't really help anyone, and is almost entirely a selfish act.
There’s another interesting dimension to it especially in the context of getting feedback from people you regularly interact in life. Regardless of whether the particular feedback was helpful appreciating it as a gift encourages the person to give feedback in the future. This ensures that you continue to get feedback from the person in the future some of which may be very valuable.
Are you assuming that the intent behind feedback is always benign?
IMHO, in work settings it can represent a sort of a power play, esp. if done in public. I, wise, experienced, and objective, have the perspicacity to critique you, a humble, inexperienced, unskilled clod. See how awesome I am?
This likely to be quite a bit more subtle than I've framed it above, of course, but the dynamic remains. And, these dynamics aren't mutually exclusive -- one may have a genuine desire to help and get an ego/status boost from it, (which makes it sometimes tricky to handle gracefully if you're on the receiving end.)
Like many others, I think this is super cool, and something that I think has been missing in the ecosystem for a long time.
I feel like the thing that would really make this over-the-top powerful is deep integration with a component library, either a company's in-house one or an open-source library. It would allow for super fast UI prototyping that would also serve as scaffolding for the full-featured product.
This is ultimately one of our goals, to allow maintainers of those kinds of libraries to publish that kind of integration, or for us or even other users to provide it (thinking along similar lines to TypeScript type definition files)
