The Supreme Court weakens federal regulators, overturning decades-old Chevron decision

for what it's worth, "WILL BAUDE is the Harry Kalven, Jr. Professor of Law at the University of Chicago Law School." So if you're suggesting that his analysis of Loper Bright is, your words, "poorly reasoned," well then, I think the burden of proof for that claim is on YOU.

As far as NERF recommending ignoring people . . . ignoring people is what gets you an 81-year-old Joe Biden running for reelection. Good luck with that, and good luck in November.

 

No way?!?! GTFO?!?!?

 

more poorly reasoned nonsense:

https://rogerpielkejr.substack.com/p/the-end-of-chevron-deference

The End of Chevron Deference
Implications for expertise in regulatory policy making
ROGER PIELKE JR.
JUN 29, 2024

In 1981, the Environmental Protection Agency (EPA), under Administrator Anne Gorsuch (the mother of Supreme Court Justice Neil Gorsuch), decide to change how it defined a “source” of pollution under the Clean Air Act Amendments of 1977. An environmental group, the National Resources Defense Council (NRDC) petitioned the EPA in federal court arguing that there was a right way to define “source” and EPA’s new definition was incorrect.

In a decision written by Justice Ruth Bader Ginsberg (the future Supreme Court justice), the federal appeals court sided with NRDC and against President Reagan’s EPA. Chevron, the oil company, was affected by the regulations, giving the company standing to sue, and appealed the decision to the U.S. Supreme Court.

The resulting Supreme Court judgment — Chevron U.S.A. Inc. vs Natural Resources Defense Council — overturned the earlier NRDC victory. The Supreme Court judgement established what came to be known as Chevron Deference — the principle that when Congressional legislation is ambiguous or silent on how to interpret a statue, the courts should defer to agency interpretations of those statutes. For instance, EPA’s definition of a “source” of pollution.

Yesterday, in a 6-3 ruling along ideological lines the U.S. Supreme Court overturned Chevron. I would have joined the dissent (Justice Kagan’s dissent is outstanding) but at the same time, I would argue that the Chevron doctrine was problematic to the extent that it created opportunities for the executive branch to take action not enacted by Congress via statutory deference.

My views are influenced by the excellent analysis of legal scholar Cass Sunstein, who observes that Chevron was once favored by the right and opposed by the left, and those positions have now switched:

Once celebrated by the right and sharply criticized by the left, Chevron is now under assault from the right and (for the most part) accepted on the left. More particularly: The decision was originally embraced by the right as an effort to cabin the illegitimate exercise of policymaking authority of unelected judges, who were often requiring greater regulatory activity, and to insist instead on the primacy of officials within the Executive Branch, who have the advantage of democratic accountability. On this view, Chevron shifted authority from unaccountable judges, who had policy goals of their own, to policymaking officials.

The principal objections came from the left, which saw Chevron as an effort to weaken judicial review and as a capitulation to the (insufficiently zealous) administrative state, which was often captured by powerful private interests, and which often failed to regulate as Congress directed. Relatively aggressive judicial review, certainly on questions of law, was necessary to counteract the risk of “capture” and violations of congressional directions.
​

Ambiguities in legislation are unavoidable for practical reasons and often even necessary to create space for political compromise. For instance, in my PhD dissertation of 30 years ago I evaluated the law which established the U.S. Global Change Research Program. I argued that the program was headed towards failure because Congress directed it to provide “usable information for policymakers” related to climate change, but the federal science agencies interpreted that phrase to mean the development of predictive climate models — and not information more directly related to mitigation and adaptation policies.

I quoted James Madison from Federalist 37 on this point:

All new laws, though penned with the greatest technical skill and passed on the fullest and most mature deliberation, are considered more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.
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In practice, in regulatory policy making, even with Chevron overturned, agencies will continue to have discretion in how to interpret ambiguity in statutes. Chevron applied to situations where agency regulation were challenged.

Justice Kagan, in her dissent, provides an example of such ambiguity:

Under the Endangered Species Act, the Fish and Wildlife Service must designate endangered “vertebrate fish or wildlife” species, including “distinct population segments” of those species. 16 U. S. C. §1532(16); see §1533. What makes one population segment “distinct” from another? Must the Service treat the Washington State population of western gray squirrels as “distinct” because it is geographically separated from other western gray squirrels? Or can the Service take into account that the genetic makeup of the Washington population does not differ markedly from the rest?
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Noting that there are multiple different ways to define concepts such as “distinct population segments,” she asks:

A question thus arises: Who decides which of the possible readings should govern?
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In 2024 in the United States, one answer to this question among conservatives might be “conservatives” and “liberals” among liberals.

That’s no way to interpret law or to implement policy.

As a practical matter, evidence suggests that Chevron actually reduced partisanship in judicial rulings. A study cited by Sunstein (Barnett et al. 2018) found that under Chevron:

The most recent data suggest that Chevron is indeed reducing the effects of judicial policy preferences. In a comprehensive study, Kent Barnett, Christina L. Boyd, and Christopher J. Walker found that Chevron “significantly curbs” demonstrably partisan rulings. When the most liberal judicial panels review conservative agency interpretations, they strike them down eighty-two percent of the time when they do not use Chevron, but just forty-nine percent of the time when they do. When the most conservative judges review liberal agency interpretations, they strike them down eighty-two percent of the time when they do not use Chevron, but just thirty-four percent of the time when they do.

Unsurprisingly, liberal panels are more likely than conservative panels to agree with liberal agency interpretations, and conservative panels are more likely than liberal panels to agree with conservative agency interpretations. But in Chevron cases, the difference between the two is greatly compressed.
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Of course, for some partisans, judicial policy making from the bench is a feature, not a flaw — if their folks have a majority on the bench. Similarly, if the choice is between a perceived politicized executive branch and a politicized judiciary, many will go with their team over what might make sense legally or for effective policy making.

Returning to Justice Kagan’s squirrels, the answer to her well-posed question is that subject matter experts in the Fish and Wildlife Service will continue to make an initial decision about what constitutes a “distinct population segment” of squirrels and use that definition to promulgate regulatory actions. Such actions, as they always have been, would be subject to review and challenge by the courts. Agency decision making will no longer be granted Chevron deference, but it will be “entitled to respect” — what is called Skidmore deference, to cite another legal precedent which was cited yesterday by both the majority decision and the dissent.

There will be a period of uncertainty as the courts figure out post-Chevron, but something akin to Chevron will necessarily have to take its place.​

more

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conclusion:

From this standpoint, I have fewer concerns than many that the impact of yesterday’s decision will limit or even exclude experts from resolving challenges to regulatory decision making. A court is not going to decide that a lion is a squirrel. But it very well may define a “distinct population segment” or a “source” of pollution in ways that favor certain economic or political interests over others. Agencies too. That is science-in-politics as usual.

Individuals in the federal agencies and in the courts will continue to use their positions to try to influence policy in their preferred directions. The game hasn’t changed, but there are some new rules.

The overturning of Chevron should get the attention of Congress. If, as Justice Kagan suggests, Congress has been generally happy with Chevron in the 40 years that it has been in place (as shown by not acting to overturn it, she argues), then Congress could act in ways to clarify agency deference overall or specifically in the context of particular legislation. This Congress won’t but a future Congress might.

I would not have overturned Chevron. At the same time, now that it has been overturned we should take the opportunity it provides to open up discussion and debate on the roles of agency experts in policy making and how make best use of science and evidence in contested political settings. Chevron or not, that challenge endures.

Recommended reading:

Sunstein, C. R. (2018). Chevron as law. Geo. lJ, 107, 1613.​

 

another poorly reasoned piece:

https://blog.simplejustice.us/2024/06/29/chevron-ran-out-of-gas/

and here I will add that what Greenfield says about Lhamon and Title IX is dead-on, and something that has affected me personally ever since Lhamon issued the "Dear Colleague" letter during the Obama administration. It was criminal that Biden resurrected Lhaman for his administration.

Chevron Ran Out of Gas

On the one hand, there’s little doubt that the running of such a diverse and complex society as ours requires a substantial bureaucracy to make it work. On the other hand, the administrative state today is not the administrative state it was 20 years ago, and certainly not what it was in 1984, when the Supreme Court created Chevron Deference.

Our Chevron doctrine requires courts to use a two-step framework to interpret statutes administered by federal agencies. After determining that a case satisfies the various preconditions we have set for Chevron to apply, a reviewing court must first assess “whether Congress has directly spoken to the precise question at issue.” If, and only if, congressional intent is “clear,” that is the end of the inquiry. Ibid. But if the court determines that “the statute is silent or ambiguous with respect to the specific issue” at hand, the court must, at Chevron’s second step, defer to the agency’s interpretation if it “is based on a permissible construction of the statute.”
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The notion was that Congress would craft vague and broad enabling legislation with a salutary goal in mind, and then pass it off to an Executive Branch administrative agency to be managed by bureaucrats who would be chosen for expertise in whatever specific field the agency addressed to do the nuts and bolts work of making Congress’ deliberately vague mandate come to life. There were two key aspects to the concept that, when Chevron was decided, were relatively uncontroversial.

First, agencies took their mandate to staff with qualified people, “experts” to a fairly decent extent as today’s hysterics decry, seriously. Second, agencies had humility, the modesty to appreciate that they were not Congress and existed to serve the limited purpose and exercise the limited authority Congress imposed on them. Congress gave them a purpose and they sought to fulfill that purpose, but not abuse their authority by straying beyond it. Even Scalia opined that it “accurately reflects the reality of government, and thus more adequately serves [government’s] needs.”

But times change, and people, being what they are, saw the opportunity to take use Chevron Deference for their own purposes. Beyond Pournelle’s iron law of bureaucracy, industry used the opportunity to “capture” government agencies by either using its people to staff them or using the agency’s people to staff industry, shifting the agency’s goal from serving Congress to serving industry.

Then there was the “expertise” problem, where second-rate bureaucrats had the power of “experts” but not the knowledge and skills of real experts. Government didn’t pay as well as private industry, and once employed, little was demanded of agency staffers of dubious qualifications, who could use bureaucratic fiat to dictate to far more qualified experts. Bureaucrats could smugly sniff yes or no, and there was essentially nothing to be done about it.

But worst of all, idealogues came to realize that by taking the lower paying, lesser demanding, government jobs, they could seize power in a regulatory realm and twist it to their will. One of the most glaring examples is Title IX, where Catherine Lhamon manipulated a mandate to prevent discrimination on the basis of sex in education to create a sexual misconduct inquisition against male students and eradicate the distinction between male and female. Nowhere did Title IX suggest any such thing, and yet Lhamon, through administrative fiat, abused her authority to reinvent the campus to suit her ideological vision.

In Loper Bright Entreprises v. Raimondo, by a 6-3 decision along party lines, the Supreme Court overruled Chevron. On the left, this was met with hysteria and outrage, the conservative justices eschewing expertise and undermining the regulatory state that saved our air and water so that industry can go back to destroying our planet for profit.

It does not, however, serve the needs of America’s business community, which looks at the slew of federal regulations and sees only reduced profits. Deep-pocketed businesses have been the staunchest opponents of the doctrine; along with a raft of committed right-wing activists, they finally managed to get enough like-minded friends on the Supreme Court to kill it off.
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But as Chief Justice John Roberts made clear, courts should still show respect to agency determinations, recognizing expertise where it deserved to be recognized. And as Justice Elena Kagan made clear in her dissent, the end of Chevron Deference didn’t mean Skidmore Deference disappeared.

{T}he majority makes clear that what is usually called Skidmore deference continues to apply. Under that decision, agency interpretations “constitute a body of experience and informed judgment” that may be “entitled to respect.” Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944).
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What the Court did was shift the final decision on the scope of an agency’s reach where the enabling law was either vague or silent from the agency, which tended to be ever-expanding to grab greater turf within its control, to the courts to decide whether the agency’s authority-grab was an abuse of the authority given it be Congress.

An immediate grievance about Loper Bright was that it would put harsh demands on Congress to write far more extensive and precise laws, making that far longer to cover unforeseen eventuality that agencies had previous dealt with on their own. Whether this was a bad thing, mandating that Congress work a lot hard than write a law saying “Agency X should do good” and leaving it to the agency to decide what that meant, is one question.

But another is whether it’s an accurate complaint. Where enabling legislation is ambiguous or silent, agencies will still be left to decide what the scope of their authority should be. And nothing in Loper Bright precludes a court from deferring to the agency when its determination is sound and reasonable. What it precludes is the mandate courts do so under Chevron Deference.

For many lawyers of a certain age, our appreciation of Chevron Deference waned as agency expertise and modesty gave way to bureaucratic power plays and ideological abuse. Chevron Deference played an important role in the functioning of our complex nation. But as Jerry Pournelle predicted, it would eventually forget its limited purpose and serve only to perpetuate the power of the bureaucracy. It was time for Chevron Deference to go.​

 

That's right, your statement is an opinion. My previous statement was factual. Here it is again: "Tech has been accelerating for decades. The US doesn't have a problem with stifling innovation. It leads the world in innovation."

 

Does anyone at all understand the case that overturned Chevron? Because the facts there are pretty damning and show why federal bureaucrats can't be trusted to interpret and enforce their own rules.

Basically, the really short version of what happened was this -- a family fishing business sued because they were paying $700 a day to have federal regulators oversee their business. The statute governing the National Marine Fisheries Service says nothing about making businesses pay for the cost of their own regulation, and it was just decided along the way that businesses would have to foot the bill for the NMFS' own enforcement.

Because of Chevron, which grants overly broad powers to bureaucrats to interpret the law, the idea that federal agencies could essentially make their own regs and make people pay if they didn't have the budget to enforce them was tolerated.

That's insane. Imagine if your local cops decided they needed a bigger budget -- gotta keep the town safe! -- and started stopping your car at checkpoints all over town to make you pay up. And the mayor and no one else in town could stop them from doing this because only the cops were allowed to determine what was legal.

That's essentially what the feds were doing here under Chevron. It was outrageous, and the fisheries service's abuse of power was hardly an isolated instance of federal overreach defended by Chevron. It was corrupt and needed to end.​

 

facts are pesky things.

Spoiler

BUT LET'S TRUST THOSE EXPERTS IN GOVERNMENT!!! THEY KNOW BETTER THAN US ABOUT EVERYTHING!!!!!!

 

So it isn't that they know better. It's that they interpret laws made by congress.

This is from https://www.bakerdonelson.com/chevr...eries-cases-leaves-administrative-law-reeling

Justice Elena Kagan wrote the dissent, which was joined by Justices Sonia Sotomayor and Ketanji Brown Jackson. The dissent vehemently disagreed with overruling Chevron, the rationale primarily being:

• Congress would prefer for agencies, not courts, to interpret statutory ambiguities because agencies have subject matter expertise.
• Under the doctrine of stare decisis, Chevron is authoritative precedent which should not be overruled unless there is a particularly special justification for doing so, which the dissent contended there is not.

The dissent also noted that overturning Chevron will result in uncertainty in the regulatory landscape, disrupt settled expectations, and raise new doubts about agency interpretations, as courts will now be the interpretive decision-makers.
--—----—--------—--------—--------

It is impossible for congress to write legislation with zero ambiguity. They will try based on what there donors and special interests tell them to do. Then it is up to judge's to decide. That's ridiculous and intimately unsafe.

Furthermore, if people don't like the way the experts at the agencies interpret the law they can vote for a new chief executive who can appoint new people at the agencies.

The court's willingness to overlook state decisis is also very troubling.

You've posted analysis in favor of the majority. But that analysis isn't more valuable than the analysis of other legal experts and especially not more valuable than those of the dissenting justices who heard the case.

 

the Baker Donelson page does an excellent job of summarizing the Chief's arguments in the opinion:

The majority opinion, authored by Chief Justice John Roberts, provided several rationales for this overhaul.

• The majority reasoned that the framers, under Article III of the U.S. Constitution, intended for the judiciary, not the executive branch, to interpret ambiguous federal statutes. To support this position, the majority cited a long line of cases that predate Chevron.
  
• The majority determined that Chevron deference is contrary to the federal Administrative Procedures Act, which mandates "the reviewing court" — not the agency —"shall decide all relevant questions of law" and "interpret . . . statutory provisions." See 5 U.S.C. § 706.
  
• The majority determined that Congress' silence in the face of statutory ambiguity does not amount to a presumption that Congress intended to defer to agency interpretation. Rather, the more appropriate presumption is that Congress expects courts to interpret statutes, while giving due respect for agencies' views.
  
• The majority was unpersuaded by the argument that agencies should be given interpretive deference because they have subject matter expertise that courts lack. The Court further held that if Congress wishes to confer discretionary authority on agencies, it may expressly do so. However, when a statute is ambiguous and Congress has not spoken, the courts are tasked with deciding the best interpretation of the statutory ambiguity. The majority also noted that Chevron inappropriately allowed agencies to change positions as often as they wished, creating inconsistency and unreliability for industry actors.
  
• Overruling Chevron, the majority promised, will not disrupt the thousands of prior cases that relied on the Chevron framework; rather, the new decision will only impact cases moving forward.

The concurring opinions, penned by Justices Clarence Thomas and Neil Gorsuch, agreed with the majority's holding to overrule Chevron but focused their reasoning mainly on separation of powers and stare decisis.
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I agree that Kagan's dissent is forceful and also that she is one of the smartest and sharpest justices on the Court. Her dissent here, however, and as usual, relies on political considerations rather then strictly legal arguments--to wit:

The dissent also noted that overturning Chevron will result in uncertainty in the regulatory landscape, disrupt settled expectations, and raise new doubts about agency interpretations, as courts will now be the interpretive decision-makers.
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While all undoubtedly true, these anticipated political consequences are NO reason legally to defend Chevron, which proved to be an unwieldy framework to resolve ambiguity in the statutes--as the Chief's opinion covers in detail. And the fact that Chevron contradicts the stated language of the APA is no minor detail; that's a BIG problem.

I respect Kagan and Kagan's dissent; I still think the Chief gets it right as a matter of law.

by the way, you'll notice I also posted Pielke's commentary, where he disagrees with the decision and avers that he would side with Kagan himself.

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I don't believe that's how the Supreme Court operates. While you and I agree that it's over-regulation, that's not a valid justification for overturning Chevron. Consider Miranda v. Arizona as an example: I'm sure many people, including the Justices, didn't agree with overturning the rape conviction. However, that wasn't the appropriate justification for ruling in favor of Miranda's rights. I think they call this judicial objectivity, separating personal opinions from legal interpretations.

Spoiler: Miranda's case

In Miranda v. Arizona (1966), the Supreme Court addressed the issue of police interrogation and the rights of suspects. Ernesto Miranda was arrested in 1963 for kidnapping and rape. During police interrogation, he confessed to the crimes without being informed of his rights. The case centered on whether the Fifth Amendment's protection against self-incrimination applied to police interrogations and whether suspects must be informed of their rights. The Supreme Court ruled 5-4 in favor of Miranda, establishing that the Fifth Amendment requires law enforcement to inform suspects of their rights to remain silent and to have an attorney present during questioning. This decision led to the creation of the 'Miranda rights,' which must be recited to suspects during arrests to ensure they are aware of their constitutional protections. After the Supreme Court decision, Ernesto Miranda's original conviction was overturned.

 

the facts are simply the occasion to bring suit; the decision and its logic is the valid justification for overturning Chevron.

 

Ok, we agree there. What I was pointing out is that the tweet and your follow-on imply that a $700 per day fine as over-regulation is a good justification for ruling against Chevron. That's not how it works.

 

I'm not sure if she mentioned it, but I think these are the other factoids and opinions:

• Chevron was a unanimous decision which contributed to the strength and longevity of it (until now).
• Part of the judgment is that Congress implicitly delegates the power to interpret ambiguous statutes to the agencies charged with implementing them. They could write each law and specifically disallow executive interpretation (they may have done so for some law, don't know). On the other hand, they could also write laws that explicitly allowed it. Whatever the case, it was judged to be implicit. Again, it was a unanimous decision.
• Congress did try, multiple times, to broadly disallow the executive branch from interpreting any ambiguity in all laws. Basically, its aim was to legislatively overturn Chevron. The latest attempt was last year. See the "Separation of Powers Restoration Act".

This court, in essence, has done what Congress wouldn't do: overturn Chevron. This is why people are saying they are legislating from the bench, by overturning a unanimous decision that Congress itself had the power to overturn, but didn't.

 

You would have made a terrific lawyer for the Nazi's

 

well, that's probably going a bit too far. I think @FranchiseBlade is a sincere and thoughtful poster. I believe he's making a good faith effort to discuss the decision.

I would return to his statement, however, at the end of what you quoted (which was aimed toward me):

You've posted analysis in favor of the majority. But that analysis isn't more valuable than the analysis of other legal experts and especially not more valuable than those of the dissenting justices who heard the case.
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I have finally finished reading the decision--the Chief writing for the majority, Thomas's and Gorsuch's concurrences, and Kagan's dissent.

Pretty confident now that Roberts, Thomas, and Gorsuch pretty much dismantle what limited, substantive legal content can be found in Kagan's dissent. So I actually think the analyses that I have previously posted--as well as Roberts's opinion--are indeed actually "more valuable than those of the dissenting justices who heard the case."

 

I find it fascinating how some people, specifically the authoritarians, claim the SCOTUS is legislating from the bench by overturning previous law. The often examples are ones that remove power from authoritarians.

Roe Vs Wade: SCOTUS decided the power should be diluted from the Federal Government and given to the states. The authoritarians instead believe the Federal Government should determine the rights because they know better.

Its always easy to consolidate power when the elite few 'know better behind closed doors' and to trust them, like everything needs to be a state secret. Instead behind these doors is massive amounts of fraud, waste and sheer incompetence, to the point where we have a president with progressive dementia.

I dont understand why anyone would continue to support this oppressively authoritarian regime other than to get a non existent attaboy.

 

throughout the west there is a plague of unelected ministries, departments, NGOs, that enact power over the populace. No matter which leaders we elect, the administrative state remains largely unchanged, indeed often acting in opposition to elected leadership.

this is best exemplified by a president who is clearly not making decisions for the executive branch

this SCOTUS ruling is a significant push back against the administrative state, but the true source of its power is the ability to print money. The administrative state cannot exist at its current scale without a money printer to fund it

 

The Nazis were the ones removing checks and balances not trying to preserve them.