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PaperclipPerfector  2mo ago (text post)   29851 thread views

Culture War Roundup for the week of July 1, 2024

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Why might agencies be deciding be better? First, they often know more about the subject matter. See the protein example, where judges might not even know what it means, or the geographic region example, where judges might know the most relevant and important senses in which regions might or might not be distinct. With their expertise, agencies could better decide.

I wrote a bit about my frustration with this framing in another spot and I think the commentary applies here:

Listening to a couple lefty legal podcasts (Strict Scrutiny and Amicus), there's something notably absent in the discussion of Chevron. When they discuss the issue, there's a constant harping on the agencies having superior subject-matter expertise to justices, which I will concede is broadly true, but those aren't the parties in a case that are arguing with each other - someone brought whatever suit is being contested in front of those justices and those someones will often have quite a bit of expertise on whatever the topic in question is. I know I'm going to disagree with the broadly construed legal left on the matter, but it's just kind of weird to hear hours of discussion where no one even mentions that the whole point of the argument is that someone that files a suit with an agency actually does have expertise and the only thing they've won with the death of Chevron is the right to have their interpretation of the law treated with the same level of seriousness by a justice as the faceless bureaucracy they're fighting against. I don't know if this is an oversight on the part of the analysts, a misunderstanding on my end, or just a cynical ploy to ignore the legitimate interests and expertise of private parties in litigation.

For a question like, "When does an amino acid chain polymer count as a protein?", I do not expect that a federal judge will be particularly knowledgeable on the matter. What I do expect is that reasonable people can differ and that the very existence of litigation on such a question suggests that there is in fact a subject matter expert that disagrees. The FDA, its staff, and its attorneys are not actually neutral truthseekers that should be deferred to - they're one party to litigation in which an expert thinks they're wrong. In overruling Chevron, the Court isn't saying that judges themselves are better experts than the FDA staffers, they're saying that the FDA staffers are not entitled to preferential treatment in an argument against a litigant, that they must make their argument in a way that a neutral third party finds compelling rather than just saying, "I am the science" with no recourse for their opposition. Chevron was always an absurd dereliction of duty and in deferring to agencies effectively granted them an arbitrary power level as long as they could muddy the waters enough to avoid clarity.

In overruling Chevron, the Court isn't saying that judges themselves are better experts than the FDA staffers, they're saying that the FDA staffers are not entitled to preferential treatment in an argument against a litigant, that they must make their argument in a way that a neutral third party finds compelling

My beef with this is that some Congressional statutes are simply so poorly drafted that a neutral third party doesn't really have any solid basis on which to evaluate those arguments. To be more precise, this isn't about evaluating arguments for or against a policy or interpretation. This is about arguments about the meaning of the law (statutory construction, in fancy words). And an intellectually honest neutral third party might at some point throw their hands up and say that the law isn't written clearly enough to decide.

Of course, that's not an option in a court case. The case has to be resolved, even if what Congress wrote is vague, uninterpretable or even self-contradictory nonsense.

And for what it's worth, I do agree that Chevron was wrong. But it's not such a rosy future as "neutral third parties will now just evaluate arguments on statutory construction". This decision (rightly) forces Congress to specify clearly what it intends, but any measure of past experience shows that is it not up to the task.

It also ignores that many cases don’t require factual knowledge but are merely policy choices made by the agency (ie legislating).

Right. Roberts sort of says that (that the competing parties will have the expertise needed) on pages 24-25.

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