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Notes -
Looks like SCOTUS has added more days to it's current session, and might release more opinions next Friday. I've been itching for Grants Pass to come down, so that's giving me some hope.
Haven't heard about the potential Chevron reversal yet, right? Are they saving the most controversial for last? Yikes, I hope not. I really hope it doesn't reverse.
If you’re suggesting that a Chevron reversal will backfire on the right, I couldn’t agree more.
And the courts.
My probably oversimplified understanding is that we'd go from
to
and create a massive additional workload for judges and government agencies both... and private business too, as a matter of fact, because changing and unpredictable regulations are often worse for business than consistent but annoying regulations. Do I have that right?
Except that’s now how it works at all in practice. No in practice agencies scratch and claw to find a hint of ambiguity and then claim they are entitled to chevron deference. While some courts actually do a hard look, many courts just quickly pass.
Also, I work in an environment that is heavily controlled by regulations. I promise you such regulations change and change rapidly. Frequently removing the ability for agencies to take creative readings likely will lead to more stable law. At least this should be testable.
Third, even if you remove chevron you still have things like Skidmore deference. The government when it issued regulations per the APA has to explain the regulation. If the government provides a compelling argument for its position than the court will accept it. That’s different from chevron where even if the government doesn’t provide a compelling reason often the courts will have to accept it.
Finally, current admin law has it almost backwards. The courts take a much harder look at facts and a much more deferential look at law. The whole idea being the administrative state is they are experts in facts. Overturning Chevron helps (but is not the end of the story) restore the court to its proper role as the expert on law.
PS killing chevron probably will make congress write more laws if there is a desire to regulate more. That seems like a good thing to me.
Great comment. Worth noting, however, that in terms of time and caseload, currently the courts do have it easy. Reversing Chevron will almost without a doubt increase the workload on judges and leave agency workload near unchanged. I'd be highly surprised if this wasn't the case. In that sense, reversing Chevron might, as a practical matter, backfire on courts, including the SC. Isn't the "better" option that courts step up and take a "hard look" at these creative interpretations more pro-actively?
If the court is doing a hard look, then there really shouldn’t be much incremental work (ie the court already needs to use the traditional tools of statutory construction to try to determine what the text means). But the problem is if you let courts be lazy by providing Chevron deference they will be, even if you say “but we really want you to validate there isn’t a better read.”
Note the legal system writ large (as opposed to more narrow parts of law) have been taking the APA more seriously. This has caused regulations to be deemed invalid. One of the criticism ls of these approaches is that it will cause a lot of work! But the response is the law is the law. I see it similarly.
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This was also a comment from a Circuit Court (I think the 9CA) on a set of labor law decisions where the presidential appointees on the NLRB would flip flop between two sets of precedents every so often. And hence both the opinion and the opposite opinion are inside Chevron, the courts can not prevent the actual policy from bouncing back and forth every 4-8 years.
Let me see if I can find it.
Yeah. The changes are subject to State Farm review but A&C is relatively easy to get around (eg we don’t believe that is a fair reading of the law).
I think the average American doesn’t understand just how much of law making is regulatory and how relatively limited recourse there is (because ultimately there is a single executive). Gutting chevron won’t fully change that but it is, as they say, a start.
I think you are correct on your opinions. Reading me makes me feel that this is true : “Constitutional Democracy doesn’t scale”
Nothing in the regulatory state feels Democratic to me. I guess you could say it all flows thru the executive to gain Democratic legitimacy but it’s definitely not Constitutional Democracy.
If humans were smarter perhaps we could all understand the details of every regulation and run that thru our congressmen but we are not.
I feel confident saying the regulatory state would not pass muster on what the founding fathers believed they were passing. But I don’t know what the other option would be.
One improvement potentially improvement might be direct election of all the regulatory heads. You would add more partisan politics but atleast the people would be picking the heads.
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