The End of Environmental Regulations/Chevron

[VikingsGuy]

Just what we need in this world, more litigation

Same amount of litigation, different standard of review to determine the winner.

 

[rogerthat]

Same amount of litigation, different standard of review to determine the winner.

No backlog built up? Sure seems like there would be.

 

[VikingsGuy]

No backlog built up? Sure seems like there would be.

Probably some "we lost with the old standard, want a new bite at the apple with the new standard" stuff will pop up for a few years, but we get a spike with every presidential cycle anyway so not clear it will be material.

 

[SAJ-99]

Same amount of litigation, different standard of review to determine the winner.

Your optimism is in full bloom today. I can’t speak to other agencies but as I pointed out, the SEC is based in laws written 90years ago and at this point everything is run off interpretative statutes. Sure, it was probably unfair that cases were held in front of internal SEC judges that knew those laws inside and out. But it was efficient. You want to see things get bogged down, just wait until there is trial by jury run by other judges not as familiar. And if I was placing a bet, I would go with more litigation. This is the USofA.

 

[VikingsGuy]

Your optimism is in full bloom today. I can’t speak to other agencies but as I pointed out, the SEC is based in laws written 90years ago and at this point everything is run off interpretative statutes. Sure, it was probably unfair that cases were held in front of internal SEC judges that knew those laws inside and out. But it was efficient. You want to see things get bogged down, just wait until there is trial by jury run by other judges not as familiar. And if I was placing a bet, I would go with more litigation. This is the USofA.

Separate case/issue. Happy the discuss but doing so on this thread mixes two completely different topics.

 

[SAJ-99]

Separate case/issue. Happy the discuss but doing so on this thread mixes two completely different topics.

Agree, won’t derail this one, but I see them as all tied together. Chevron is about agencies being allowed to interpret vague statute. SEC is an agency built on interpreting vague statutes.

 

[Sytes]

Gorsuch is concerned a huge unelected and nearly untouchable administrative state will crowd out anything resembling democracy

Sounds as though you're saying the same as my observation of Gorsuch.

The reality is based on our Seperation of Powers. An Agency should not hold Executive, Judicial, and Legislative powers and that is what the Chevron deference enables. Gorsuch also argued this same point during his Circuit Court days. I take it that is what you are referring to, "untouchable administrative [not] resembling democracy" via lacking a direct check and balance, as the intent of democracy via Seperation of Powers?

I would say the slippery slope occurred when it was opined the Chevron deference overcame a congressional Act.

My statement is specific to the Congress passed, Administrative Procedure Act where Scalia opined Cogress was giving Agencies broad powers however it is clear (at least IMO and the recent SCOTUS ruling) Congress presented no such power.

5 U.S. Code § 706​

To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—
(1)compel agency action unlawfully withheld or unreasonably delayed; and
(2)hold unlawful and set aside agency action, findings, and conclusions found to be—
(A)arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B)contrary to constitutional right, power, privilege, or immunity;
(C)in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D)without observance of procedure required by law;
(E)unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or
(F)unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.
In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.

Politically speaking, no Agency controlled by the Executive branch (Politically appointed) should hold the three powers. IMO, Seperation of Powers is the core of American values. The check and balance of our Constitutional process.

One example: EPA is a primary political football and a primary example why an Agency must not hold such powers.

 

[SAJ-99]

Sounds as though you're saying the same as my observation of Gorsuch.

The reality is based on our Seperation of Powers. An Agency should not hold Executive, Judicial, and Legislative powers and that is what the Chevron deference enables. Gorsuch also argued this same point during his Circuit Court days. I take it that is what you are referring to, "untouchable administrative [not] resembling democracy" via lacking a direct check and balance, as the intent of democracy via Seperation of Powers?



My statement is specific to the Congress passed, Administrative Procedure Act where Scalia opined Cogress was giving Agencies broad powers however it is clear (at least IMO and the recent SCOTUS ruling) Congress presented no such power.



Politically speaking, no Agency controlled by the Executive branch (Politically appointed) should hold the three powers. IMO, Seperation of Powers is the core of American values. The check and balance of our Constitutional process.

One example: EPA is a primary political football and a primary example why an Agency must not hold such powers.

I think asking Congress to do its job is good. I think asking Congress to be specific in writing laws is good. My main questions are how realistic is that? Asking Congress to do its job when you know they can't do the job could be viewed as a power grab for the judiciary. Did we just create a scenario where judges (those nonpartisan, nonidealistic, unelected judges, often having no background in complex subjects -yes some sarcasm) have to decide interpretations? Democracy is messy, but I'm not sure this cleans it up much.

 

[ismith]

Maybe throw out the 3 co-equal branches of govt and just have a single 9 person elected oligarchy. Certainly would be simple. But there is no reason to believe it would be more effective, more just, more attentive to consistency, or make better decisions over the course of many decades. Too many folks seem to just want simple and certain answers - and those people seem willing to trade freedom and democracy for such perceived (but likely false) comfort. That is how dictators swallow democracies.

How about a King? Lots of princes in the Middle East looking for a job.

 

[Sytes]

I think asking Congress to do its job is good. I think asking Congress to be specific in writing laws is good. My main questions are how realistic is that? Asking Congress to do its job when you know they can't do the job could be viewed as a power grab for the judiciary. Did we just create a scenario where judges (those nonpartisan, nonidealistic, unelected judges, often having no background in complex subjects -yes some sarcasm) have to decide interpretations? Democracy is messy, but I'm not sure this cleans it up much.

I believe Congress lays out the ground work - i.e the purpose and scope of an Agency. This SCOTUS ruling does not terminate Agency process it merely defines our Courts are not bound to give preference (Chevron deference) to the Agency "experts" over other 'experts".

 

[Oak]

Same amount of litigation, different standard of review to determine the winner.

With the Corner Post decision today, more litigation.

 

[SAJ-99]

I believe Congress lays out the ground work - i.e the purpose and scope of an Agency. This SCOTUS ruling does not terminate Agency process it merely defines our Courts are not bound to give preference (Chevron deference) to the Agency "experts" over other 'experts".

I’m not sure you and I are saying anything different. This takes power from legislative executive and gives it to judicial. Without preference, it’s up the judges. And judges are people with their own strengths and weaknesses and views on things. Some will still probably weigh expert views more heavily. Others will try to understand each argument but still be influenced by their own ideology.

I tend to think all systems evolve to a stasis balancing efficiency with goals. The agencies are/were set up to protect the general public interests - drugs, investments, public lands, environment, safety, etc. we may not like every rule or decision they have or the bureaucracy, but they have generally met their intent. Limiting the abilities of agencies seems like a continuation in of the battle between capital and labor. But that may be my bias showing.

 

[rogerthat]

Yeah if your an attorney business is looking good! Imagine that, a group of unelected attorneys thinking the courts know best. WAFJ

 

[Sytes]

Yeah if your an attorney business is looking good! Imagine that, a group of unelected attorneys thinking the courts know best. WAFJ

How did the attorney's for our corner crossing hunters manage? God forbid... Expert witnesses, historical context, etc.

 

[Mountain Man]

I’m not sure you and I are saying anything different. This takes power from legislative and gives it to judicial. Without preference, it’s up the judges. And judges are people with their own strengths and weaknesses and views on things. Some will still probably weigh expert views more heavily. Others will try to understand each argument but still be influenced by their own ideology.

I tend to think all systems evolve to a stasis balancing efficiency with goals. The agencies are/were set up to protect the general public interests - drugs, investments, public lands, environment, safety, etc. we may not like every rule or decision they have or the bureaucracy, but they have generally met their intent. Limiting the abilities of agencies seems like a continuation in of the battle between capital and labor. But that may be my bias showing.

I don’t think this transfers any power from the legislature to the judicial. The legislature still has the power to pass any law it wishes to. If it doesn’t agree with the way the judiciary interprets its own laws, then it can rewrite them or write new laws. That is the power of the pen that should be with the legislative branch.

 

[SAJ-99]

I don’t think this transfers any power from the legislature to the judicial. The legislature still has the power to pass any law it wishes to. If it doesn’t agree with the way the judiciary interprets its own laws, then it can rewrite them or write new laws. That is the power of the pen that should be with the legislative branch.

My bad. Completely mistyped. I meant executive branch.

 

[MT Super Puncher]

Just a heads up: SCOTUS just overturned the Chevron Doctrine, which is the precedent that gave federal agencies deference/rulemaking authority. This doctrine benefitted both political parties and their administrations during the many years it was the rule, by streamlining agency authority. It is one of the most cited cases in U.S. history.

What this means going forward is that the BLM, Forest Service, etc. can only make rules expressly authorized by congress. Anything that is fuzzy, or used to be deferred to the experts in those fields, will now have to go through our much-less-efficient congress.

https://www.cnn.com/2024/06/28/politics/chevron-precedent-supreme-court/index.html

That's not legally/factual accurate to what Chevron deference was. Agencies made decisions on various statutes, and interpreted them, and the courts under Chevron were only allowed to examine whether the agency's answer is based on a permissible construction of the statute. It required courts to give an extreme bias and prejudice to the govt agency's interpretation. Overruling Chevron eliminate this deference (bias). The only change in administrative law going forward is that federal courts should resolve cases and controversies without any systemic bias in the government's favor. Agencies still will interpret laws passed by Congress as they have always done; however, they simply won't be afforded the head-start in their favor if/when litigation arises.

 

[VikingsGuy]

How about a King? Lots of princes in the Middle East looking for a job.

We don't have to go that far looking for a king, we have a failed New Jersey real estate "mogul" already trying out for the job

 

[KingOfTagSoup]

I think overall this is a very good decision. Bureaucratic agencies should never be given the authority to interpret vague statutes on their own. It's too easy for that to be abused when the wrong people end up in those positions and agencies (looking at you ATF). Could there be reduced efficiency? Maybe, but that's a small price to pay for hopefully better protection of our freedoms in my opinion.

 

[Mountain Man]

My bad. Completely mistyped. I meant executive branch.

Fair enough. There is no doubt that this ruling reduced the power of the executive branch, but I think that power was transferred more to the legislative branch compared to the judicial branch.

It is more so returning the power to where it always should have been.