Are there any checks against this? Or can justices just keep granting themselves more powers and invalidating any restraints?

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.

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).

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.

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.

Funny. Seems like it bent pretty hard in the last election. Why should we only honor the bends to the right?

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.

Can you clarify how these aren’t left/right distinctions?

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.

https://apnews.com/article/supreme-court-public-corruption-b...

> 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.

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.

The design that can and has been undermined and bent on partisan lines, because of a dedicated campaign to achieve this very goal?

Looking at a few Supreme Court's rulings, say -

https://en.wikipedia.org/wiki/Bush_v._Gore

https://en.wikipedia.org/wiki/Trump_v._Anderson

- I'd be inclined to say that the Supreme Court's design is to bend the results of every political election to suit their own wishes.

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".

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.

Used to be, in my opinion. Now I'm not so sure if parties that pursue power uber alles would face any consequences.

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.

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.

You should read the actual opinion, because that's not what happened here.

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.

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."

* https://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natura...

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).

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).

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.

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?

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.

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?

Does SCOTUS fit into this hypothetical?

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.

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.

Not to mention that packing the courts could well be interpreted as an open attack against the separation of powers

With a populace that cares about ethics and morals, that would be a sensible strategy, but unfortunately about half the voting US population doesn't give a flying fuck about either any more.

Additionally, the danger for Democrats going for low blows and breaking tradition is that they might lose a significant part of their own voters as a result.

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.

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.

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.

The laws have nothing to do with the legal system? That's a new one.

Thats all people here want. Whatever power it is that you think that agencies should have, try to pass a law to do that first.

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.

Then make a law saying that yes this is ok and good enough.

Problem solved.

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.

Take a look at the recent Murthy verdict and Justice Alito’s dissenting opinion.

The point is to avoid “experts”.

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.

This is not *at all* related to what the Chevron defense is about.

"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.

How is that not a good thing?

Bureaucrats living in fear that the laws they pass might be held up to scrutiny?

That sounds like a good thing!

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.

Good luck with this.

At least these corrupt politicians come to face the music every four years.

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".

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.

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.

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.

It’s unworkable. And that is the goal.

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...

> 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.

Yes, absolutely.

Congress can do their job and write the laws instead of delegating their authority to the Executive Branch.

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.

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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.

----------

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.

The actual ruling was NOT an "textualist" interpretation at all.

Here's a summary with the linked ruling in case you're interested:

https://www.scotusblog.com/2024/03/supreme-court-rules-state...

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.

Another is that they're "originalists" in their interpretation. How do their decisions hold up if you apply that perspective?

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."

This “anything not expressly allowed must be forbidden” is the exact opposite of how US law works.

With regards to the Constitution, the 10th Amendment would disagree.

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

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

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.

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.

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.

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.

[1] https://www.businessinsider.com/supreme-court-google-tech-so...

[2] https://www.propublica.org/article/supreme-court-errors-are-...

[3] https://www.vox.com/2014/4/23/5644154/the-supreme-courts-tec...

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.

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.

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.

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, but this is a system where everyone involved is trying to (help their team) win rather than trying to produce generally efficacious policy.

Despite its reputation for not passing any laws, the last session of Congress still passed a fair number of laws: https://legiscan.com/US/legislation/2021?status=passed

(The current one seems to be a fair bit behind, but it is also operating on razor thin vote margins and the session is not over yet).

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.

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.

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.

An abuse of a form doesn't invalidate that form's validity.

I would be logically incoherent to assert that all hamburgers are crap on the basis of having worked at McDonalds for years.

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.

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.

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.

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.

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.

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.

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.

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.

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 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.

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 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."

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 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.

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.

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.

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.

Well, you're in luck with this court!

> The Roberts Court just decided to increase Congress' workload 100000x

https://news.ycombinator.com/item?id=40823343

meta: this has been one of the most interesting and educational threads in recent times. Three cheers for HN.

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 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.

https://constitution.congress.gov/browse/essay/artIII-S2-C2-...

That has unfortunately proven unworkable.

If Thomas is known for anything on the Court, it's shouting into the void in concurrence or dissent.

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.

Checks and balances is not a one time thing.

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.

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.

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.

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?

~"That's right, I want Congress dead-locked, I don't want any new laws passed!"

- David O. Sacks

That's neither the judiciary's problem nor purview. Its yours (and mine) as voters.

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

Yes, packing the court.

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.

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.

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.

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.

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 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.

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.

https://harvardlawreview.org/forum/vol-136/the-imperial-supr...

But it does throw the whole idea of injusticeable claims right out the window. Bush had no claim at all, he literally still got thrown the election in a special one-time-ruling.

What they did was a valid exercise of their power, just an extremely distasteful one. Right? As such, they’re literally, by the text of the constitution, an unjusticeable claim. The concept is facially incoherent, the court can justice anything it wants.

The things they choose not to address, literally are because they’re things they don’t care about using their assumed powers to address. They literally invented the whole concept of a “one-off calvinball ruling” and formalized the concept already.

Every time I hear some disparaging comment about "the penumbra of the constitution" from the conservative justices, I can't help but roll my eyes because of that.

I really hope she meant to convey a different point here, because it reads as if congress doesn't care and wants unelected bureaucrats figuring out what laws mean because they themselves know they suck at writing those laws. If that is the case, then why even have congress?

I never understood the whole "un-elected officials" argument. How many people should we have on the ballot? 10s of thousands?

Regulatory capture at agency level is way harder to do.

Congress doesn't need the expertise to write the regulations. The elected Congress could just vote to pass the regulations as laws. Congress just doesn't want to be on the hook for the regulations, which is part of the reason why they hand off law-making to the agencies in the first place.

Theoretically, this approach would give people a greater voice in the rules that govern them. Sadly, in practice, we can't seen to rollback the proliferation of criminal laws that embolden prosecutors and lead to an unfathomable number of people in jail that have not been convicted by juries.

Even in those cases where they recognize an ambiguity they create and where the agency’s interpretation is within a scope that Congress approvingly foresaw, that’s at most an implicit pre-approval of the agency’s regulation, not an explicit approval of the regulation in the sense that defeating a CRA resolution would be.

Far more importantly, most CRA resolutions attempted to date have not occurred in the same Congress as the one that passed the authorizing legislation for the regulation. There is no reason at all to assume that the Congress attempting the CRA resolution holds the same view on the relevant agency interpretation as the one that passed the authorizing legislation, whether that view is approval or disapproval.

That leaves us with some options, such as these ones which I'm ordering from "most reasonable" to "most insane":

(1) In lawsuits, courts should generally assume that the lawmakers have given the EPA permission to create a formal list and judgement criteria for what counts.

(2) In lawsuits, courts should assume the list is totally empty unless a federal lawsuit has happened where both sides have called in "chemical experts" to testify and then a federal judge decides which chemicals are deadly and which are not.

(3) The law is totally meaningless until congress amends it with another bill that inserts a full list of every possible chemical composition and configuration required concentration-level, and anything not explicitly included on the list is exempt.

(4) In lawsuits, the regulator should have to prove that the substance in question is fatal. The EPA will have published a list ahead of time and and if challenged it will be up to a court whether the EPA has correctly determined the lethality of the substance.

(a) Radioactive pollutants, cadmium, arsenic, and polycyclic organic matter Not later than one year after August 7, 1977 (two years for radioactive pollutants) and after notice and opportunity for public hearing, the Administrator shall review all available relevant information and determine whether or not emissions of radioactive pollutants (including source material, special nuclear material, and byproduct material), cadmium, arsenic and polycyclic organic matter into the ambient air will cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health. If the Administrator makes an affirmative determination with respect to any such substance, he shall simultaneously with such determination include such substance in the list published under section 7408(a)(1) or 7412(b)(1)(A) 1 of this title (in the case of a substance which, in the judgment of the Administrator, causes, or contributes to, air pollution which may reasonably be anticipated to result in an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness), or shall include each category of stationary sources emitting such substance in significant amounts in the list published under section 7411(b)(1)(A) of this title, or take any combination of such actions.

(b) Revision authority Nothing in subsection (a) shall be construed to affect the authority of the Administrator to revise any list referred to in subsection (a) with respect to any substance (whether or not enumerated in subsection (a)).

Or a regulatory agency will grossly stretch their mandate to overstep what they are effectively allowed to regulate and interpret.

Since there effectively minimal judicial checks and balances against that behavior that's also not desirable either. Just look at the farcical interpretations from the ATF in recent years that have sent innocent folks to prison for having a completely non-functional design of a gun part on a business card to prison. Or classifying a shoe string as a machine gun. These folks have had little to no recourse in court due to the ATF's broad unchecked discretion.

That last part is the single biggest problem with the administrative regime as it has stood hitherto: it means that almost everything that happens in the federal government can be completely undone based on the results of a single nationwide election that we have every four years. It means that every right, every process, every plan that interacts with the federal government in any way has a four-year shelf life.

Government by administrative rule is why no one is getting too excited about non-competes getting banned or non-solicitation agreements curtailed. It's why I'm nervous about the future of the IRS's free tax filing software. It's why there are whole industries built up around trying to keep up with the latest about-face that the executive branch has made.

The existing system of administrative rules absolutely sucks for stability. It sucks for anyone who gets used to a benefit only to have it stripped out with an administrative change. It sucks for anyone who's trying to plan anything out on a longer timetable than four years.

If this forces Congress to get their shit together and pass lasting laws that can't just be upended with the next presidential election or if it forces states to start taking on the role that the federal government has hitherto failed to fill then in the long run this ruling will be better for everyone. It's just going to be very uncomfortable for the next few decades as we sort it all out.

This new system is even worse. At some point, the Judiciary will make a poor ruling. Perhaps this ruling is impossible to hold to, but maybe the executive branch decides to usurp the court of its own volition. Then what?

The checks and balances system of our government only works when everyone plays nice. But if push comes to shove, then the executive branch is the one that holds all the power. They don't have to obey the legislator nor the judiciary -- neither has any real capability to enforce their will.

The country has been slow rolling into single pillar government structure for decades now. IMHO, this ruling is a huge step towards solidifying the executive branch as the de facto sole branch of government. Government agencies were provided a mechanism for all three branches of government to work together, legislators provided scope and leadership, the judiciary provided checks, and the executive provided the operations.

Once the agencies are all gutted, a future administration is going get an opportunity to act on their own via executive authority and they will ignore any attempts by the court to stop them, because the court is literally powerless in all but word. And that's what opens the door to a president who begins seizing assets of political opponents.

Lots of authoritarian countries masquerade as democracies because legislators and judiciaries are inherently powerless to stop executives.

I know plenty of people will counter with the old way was supporting an authoritarian executive. But to them, I'll point out that the agency system has ~100 years of efficacy behind it.

The agency system you are advocating for has only a few decades of history. Chevron was a 1984 decision, and didn’t really rise to prominence until the Obama administration.

https://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natura....

https://en.wikipedia.org/wiki/Administrative_Procedure_Act

That’s what Chevron deference is about. There is no law on the books that gives the FTC authorization to ban non-competes. They just argued that it kinda-sorta fell within the scope of their expertise and did it.

That is by and large how the government has been run for the last decade and a half. It is not how the government has run for most of the last 100 years as you claim. Most of that time period the agencies stuck to the letter of the law, only deviating in rare circumstances.

Sure there is; it's the Federal Trade Commission Act, which says "Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful."

They, through the regulatory process, correctly determined that non-competes are unfair methods of competition.

> But prior to Obama’s administration, it was really rare the agencies would enforce policies with no basis in the law whatsoever.

Obama's administration changed the makeup of the court with his loss of Scalia's seat, failure to pressure RBG to resign, and Trump's subsequent picks; that's what changed. The regulatory setup long predates his presidency. Chevron fell because the court got extra conservative members, nothing more.

Not really. Do you think "Unfair" has an objective definition? Just saying something is unfair won't make it automatically or objectively unfair. Non competes are not deceptive.

It may be covered but the point it is not logically implied by the text you quoted.

Compare that with the objectivity of this (still contains a lot subjectivity):

https://www.govinfo.gov/content/pkg/USCODE-2013-title42/html...

The first: https://en.wikipedia.org/wiki/Interstate_Commerce_Commission

Chevron was a failed attempt at knocking that setup down.

Nothing in this decision "guts" the agencies.

The ruling is literally the opposite.

The power is put in the hands of the courts and it is take away from the executive appointed agencies.

Congress has ultimate authority, period. So the SCOTUS running amok is a very bad look and smell.

Which is why U.S. foreign adversaries have been actively sowing chaos for a decade.

America for better or worse (mostly worse) has a two party system that in practice functions as mostly a uniparty prioritizing defense spending, entitlements, and the economy, with some lip service paid to red meat/blue meat issues to ensure power is maintained. This means you can reliably predict what American policy will be in any given moment for any given president.

Besides, EU member states have had much more iteration on their governments, policies, regulations, and parties. It's not uncommon for a European country to have 7 different parties. And unlike the US, EU's don't hold their constitutions in a such unchanging high regard. Ours is purposefully difficult to change. France, for example, on the other hand, has changed its constitution twenty-five times since circa 1958.

edit: I took out He-Who-Must-Not-Be-Named because it seems even here on the board of Very Smart People ™ we can't help ourselves when we see that name and ignore the rest of the point someone tries to make.

You say this as though he isn't favored to win the next election and take over the presidency and all its policies in about six months.

Edit in response to the edit: I latched onto this because it's entirely relevant to the rest of your point. Trump is the Republican party today, and his foreign policy dictates the acceptable stances for the majority of Republicans in Congress. His foreign policy is absolutely terrifying to our allies.

I didn't latch on to Trump because he's a big name, I latched on to Trump because you deliberately glossed over him as though he weren't an enormous glaring example of how quickly our foreign policy can (and is likely to!) pivot.

My theory is that liberals were made mentally dull by the Warren court, that it created this unacknowledged model of government within their minds where all actual controversies are low level, and will eventually work their way up to the Supreme Court, who will simply dictate the consensus liberal opinion to be the law.

It's a world where Congress has no other function but to create regulatory agencies to which they appoint their campaign staff, thinktank creatures, friendly professors, lobbyists, and each other's friends and family. To fill in the gaps, the country is otherwise ruled through executive orders, and all resulting injustices from this system are to be straightened out by the Supreme Court. That world is very much gone, and nobody has adjusted because all of their theories on liberal governance come from a period during which this was close enough to true (although gradually less and less after Warren.) It is not now true. We (and liberals) can stop worshiping the members of the Supreme Court now, and simply treat them as smart, connected people writing opinions that we may or may not agree with, instead of some holy chamber of wizened elders.

It's profoundly anti-democratic. It's an exact counterpart to the theocrats on the conservative side, but not grounded in anything but current upper middle-class trends and a belief in Whig history to replace the belief in gods.

If we can't fix Congress, and get them to actually govern, there's no government worth saving. I'm not going to fight for the right of the president to unilaterally declare war, rule by executive order and Supreme Court dictates, or the actual functioning of the country to be delegated to unaccountable regulatory agencies. Doesn't spark joy.

edit: I think the existence of the Senate probably adds to the level of liberal cynicism about democracy. It should really be abolished or directly elected in a way unconnected with the states. We already have a geographically based body in the House. The Senate is clearly a distortion of democracy, like a sensory homunculus for representative government (https://en.wikipedia.org/wiki/Cortical_homunculus#Representa...)

> It's a world where Congress has no other function but to create regulatory agencies to which they appoint their campaign staff, thinktank creatures, friendly professors, lobbyists, and each other's friends and family.

And they call anything that takes power away from this unelected shadow government "anti-democratic."

Our political class getting lazy and stopping doing the hard half of their jobs (effectively communicating and building national consensus) and instead adopting Jon Stewart levels of discourse and you get where we are today.

Don't you mean schoolyard bullies?

Because that's how much of the world, including your allies, view the US.

Then again, seeing the state of the US police force, maybe that's why US people think bullying and policing is the same thing?

To be confused about this at this point reveals either profound ignorance or extreme motivated reasoning.

That’s why it’s “not guilty” or “acquitted” as opposed to “innocent”

One can absolutely draw their own conclusions separately from what the obvious sycophants in the Senate ruled.

You’re free to take the position that the timeline and transcripts from the call are overruled by your belief in Trump’s and the Senate GOP’s integrity, but that’s not the only reasonable interpretation of events.

But while I do agree NATO allies should spend 2% or more on the militaries in a good faith effort, the spending value itself is kind of a dumb metric if for nothing other than they could just spend money and have poorly trained militaries anyway. It’s a rallying point to be angry about by people who didn’t know what NATO even was before Trump started complaining about it.

Going back to the awareness issue, the United States and allies across the world have been working to stop Russian aggression in Ukraine, and potentially elsewhere like the Baltic states or other formerly occupied Soviet Union states. Many of those in leadership in Europe and elsewhere are concerned about Trump because they do not, for good reason, trust him to act faithfully on the commitments that the United States has made in Europe.

Vladimir Putin believes that the United States and its influence should be degraded in Europe and that European states should instead be under the influence of Russia. This is a net negative for the United States obviously, and the concern here is that Donald Trump seems to either agree or find himself apathetic toward this because he doesn’t seem to understand that he’s being played for a fool to the detriment of the United States and European partners.

To try and paint a more clear picture, if the United States were to fail to honor its security commitments to Europe, it calls into question the ability of the United States to honor any strategic commitment. This pulls not just European countries closer to Russian influence, but causes the United States a massive headache in the Pacific as South Korea, Japan, and Taiwan (never mind the Philippines or others in South East Asia) stand to be sucked into the sphere of Chinese influence which means that the United States loses military, diplomatic, and economic capabilities and leverage.

You might say “so what?” and to that I’d say you’ll find our country worse off economically, higher prices for many goods, and whatever meager international influence exists today to cooperate on global or regional issues will be significantly degraded.

We're at the scale now where majority rule at the federal level will usually leave 170 million people unhappy. If we can't get anything done at the federal level that might be a sign that we've hit the maximum size+diversity threshold for a functioning democracy and it's time to resolve more of our issues at a smaller, more local level.

There are major power imbalances in the country and it is not sustainable. The path we are on leads to a breakup of the country or a rewriting of the Constitution. The status quo is not sustainable.

For those in the sway of the Federalist Society, that's a feature, not a bug.

This SCOUTS ruling means there will be *significantly more* ambiguity and instability in the federal government. *More* things will be up for destabilization by Republican activist judges. The outcome will be a government that works less efficiently and effectively.

This is the Republican play book: purposely make the government worse, distract with absurd claims, then come election time lie and say that the Democrats want to make the Republican's version of bad government even more expansive. Every four to eight years, the Democrats clean up the Republican's mess. Government gets better. Then Republicans lie again and the cycle repeats.

You may already understand this, but just to make it explicit: the Democrats are not the good guys in this process. They benefit just as much as Republicans from good government being perpetually on the brink. They win the presidency because we're terrified of what Republicans will do if they don't. The system is currently structured to reward both sides for brinkmanship and that's why it sucks.

We need a system that reduces the amount of change riding on any single election and neither party wants a change to such a system. If SCOTUS is as much an extension of the Republican party as people here assume then I think we'll find in 30 years that they badly shot themselves in the foot.

Make no mistake about it, this is about giving more power to the powerful, and it's working. This is the swan song of America if we don't wake up.

With such a vibrant public democracy as America, things that drag out, like allowing non-competes for fast food workers, are best served with public participation, a long process, and sunlight.

It's not as tightly coupled to a presidential administration as you may think, that's where "Deep State" grumbling comes in: if it's imposed by presidential fiat, its in violation of a 1000 mundane things that courts have historically consistently enforced: a long, public, process with a thorough cost/benefit analysis that indicates a net benefit. So, the "Deep State" (administrative processes that are required to occur for a rule change at an administrative agency, to whom authority was delegated to by the legislature) prevents a unilateral presidency.

Parsing through the FTC press release on non-competes provides some indica of the sunlight/processes involved. [1]

[1] https://www.ftc.gov/news-events/news/press-releases/2024/04/...

It won't. People will just suffer while federal workers sit around twiddling their thumbs, because they no longer have the power to figure out how to carry out their missions. And then this will be used to label their jobs as "waste" in order to justify shutting down their agencies. Tada, the real aim of vaporizing regulators and government services achieved.

If you found our perennial government shutdown circus entertaining, you're in for a treat.

> If this forces Congress to get their shit together and pass lasting laws

It won't. One of our political parties is hell bent on removing rights, reducing protections on workers, the environment, everything. They want a significantly smaller federal government. They wield enough power that there is no way that, for example, if Congress had to do all of the EPA's rulemaking jobs, anything would actually get passed.

States have some ability to take this on (for now, at least). California's vehicle emission standards, which end up being the de-facto national standards, are one example. But I could easily see conservative SCOTUS not letting this stand, and coming up with bullshit reasons why those rules are unenforceable.

And this is a part of the problem. The conservatives cry "states' rights!" at every turn, but they are still quick to strike down (at a federal level) things that progressive states do that they don't like. The other part of the problem is that there are quite a few policy things that you can't leave to a patchwork of states to decide for themselves. You need national unity for it to matter.

> It's just going to be very uncomfortable for the next few decades as we sort it all out.

Awesome, by the time that happens, I'll be an old man unlikely to see any of the benefits of it eventually becoming sorted out.

More likely, I expect Trump to win this fall, and he'll dismantle and destroy the executive branch, and further degrade any trust in institutions that we have left.

...

One thing I do think would help would be to fix representation in the House. House membership was regularly expanded as the nation's population grew, but has been left static for over a century now. One of the more reasonable methods I've seen for determining the total number of seats in Congress would have us at around 700 now[0] (vs. the 435 we actually have).

There are a lot of options here, and it can be instructive to look at other countries for comparison. The UK has a fifth of the US's population, but their House of Commons has 650 members. But on the other end of the spectrum, India, with a population 4x that of the US, has a lower Parliament chamber with a maximum of only 552, though that's a constitutional requirement and perhaps harder to change. Anyhow, if we were more like the UK, the US House would have around 3,250 members (a quite nice ~100k constituents per representative). That's probably a bit too unwieldy? But if we were more like India, the US house would shrink to 135, which is almost certainly far too few (mind-boggling ~2.5M constituents per representative).

Not only would a larger House mean better representation for constituents (both being more proportional, and having each representative represent fewer people), but it would mean larger committees, and more people to tackle various rulemaking jobs that are currently handled by executive agencies. I do expect that a larger, more proportional House would end up being more left-leaning, so I'm obviously biased at least somewhat in my desire for this to happen. (As an aside, would fewer constituents per Congressional district make gerrymandering more difficult? Intuitively I think so, though I have no real basis for believing that.)

[0] https://www.washingtonpost.com/opinions/2023/03/28/danielle-... (cube-root method)

In which case the states will step in. We're already seeing this happen post-Dobbs, with blue states falling over themselves to create safe havens. If Congress can't get anything done and the courts won't let the executive branch do anything then that trend will continue with workers' rights and everything else.

Maybe our problem is that the country has just gotten too big to run effectively as a single 350-million person democracy, and it's time for the state governments to step up and stand up for their people.

Either way—federally or at the state level—we need written laws drafted by elected representatives in a body that has more inertia than the single position of chief executive.

Or, perhaps, we just need to alter some aspects of that government to run better. For example: changing the size of the House of Representatives to make it more representative. It wasn't supposed to be stuck at 435.

Switching away from first past the post voting would also help enable more diverse voices within the government.

You have my full agreement on that! Unfortunately that's not going to happen at the national level any time soon, both parties benefit from first-past-the-post too much. We'll see better luck experimenting with it at the local and state level.

I imagine there are some seriously distraught teachers in that state right now.

We are in dark times.

And for reference, there has already been trends of this occurring. The Texas bounty hunter law for women who have abortions is an example, where they have tried to sue other states for records pertaining to abortions (See: Texas vs Seattle Children's Hospital).

The American system has always been full-throated adversarial -- and extremely successful. The historical system of legislature could delegate, and if the delegation went bad, the judiciary could intervene, rather than the legislature has to intervene in every bit of administrative minutae.

Analogy would roughly be...idk, the CEO has HR handle pencil procurement. HR, over the years, used this to interpret they could swap in mechanical pencils, erasable pens. But the new CFO tells the board this has to stop, the CEO is responsible for signing off on expenses. And then the employees say this is a good thing, that'll get the CEO more involved. But the CEO is already involved, just busy with other things.

The pencil example is all fun and games, but swap « buying mechanical pencils » with « sending people to prison », and then it makes more sense why some people prefer the judiciary branch to constrain the power of HR when there’s ambiguity.

I'd also prefer a more practical example to argue with.

IMHO my shift on this is due to the practical examples seen over the years, legislature delegating to an agency they create, with judicial review, ends up being a good thing.

I'm honestly unaware of any unjust rule-making that ended up unfairly trampling someone, much less whip-lash back and forth.

What would be unreasonable is to give those 3 options to a judge and ask them to do a coin toss on which one is right, and then let it sit that way.

I may be radical in this, but I wish the judiciary could force the legislative branch to decide on what the law they wrote means.

Anything passed by the legislative that tries to end run that delegation is simply not even a law. The Constitution is the Supreme Law of the Land. What is explicit within it overrides everything else.

Congress is like the product manager and creates something like the URS (user requirements specification).

The executive branches like the developer team that has to Turn those high-level requirements into detailed implementation plans.

The judiciary is typically the quality assurance and auditing team. They make sure that the executive branch hasn’t gone way past the initial requirements and they also check to make sure the initial requirements make sense and don’t cause other problems.

You meant to say "extremely wealthy citizens." The power vacuum that comes with less government is always filled-in by people with the most resources. And those sorts of people only see the non-wealthy as objects to be exploited for them to acquire even more wealth.

Why didn't those super powerful vacuum-fillers carry the day in the Civil Rights Movement, or when marginal income tax rates were 90+%, or when the EPA was created? Because they don't have the power that everyone thinks they do (maybe even they think they have, themselves).

I do not expect Congress to atomically approve or disapprove every regulatory action. That is a straw man. I expect them to write clear laws that state what agencies can do, what they cannot do, and how they should do it.

The case before the court is a good example of how the opaque and unaccountable nature of a federal agency allows them to serve their own self-interest at the expense of the citizens they are supposed to protect. Specifically, Congress specified in law that "authorizes the government to require trained, professional observers on regulated fishing vessels". But their law did not specify who would pay for these observers. So under Chevron, the agency got to decide. And, shocker! They decided they did not have to pay for it.

This ruling stops that specific abuse, and hopefully many others. The actions of federal agencies is not generally a thing to be desired.

Isn't that just the default assumption of all regulatory law? e.g. when the FDA adds an ingredient labeling requirement, there's no expectation that the FDA has to pay for the costs of adding the labels. When the EPA says "hey you can't dump your waste in this river" they don't have to pay the cost of getting rid of it in a compliant way. This doesn't strike me as an abuse at all.

> I do not expect Congress to atomically approve or disapprove every regulatory action. That is a straw man. I expect them to write clear laws that state what agencies can do, what they cannot do, and how they should do it.

But it isn't, the world changes, writing laws that anticipate these changes is equivalent to predicting the future. Take for example laws to regulate the telephone networks, those networks over time changed from carrying voice traffic to including data to carrying data exclusively (and voice just being data). So even if we believe the networks are effectively the same, Congress now has to waste their time to write new laws to keep up with those technological advances (and telecom is by far from the only area, what about new medical therapies that we hadn't imagined previously. Should Congress write new laws for these? ) essentially this is the way to paralyze it.

> The case before the court is a good example of how the opaque and unaccountable nature of a federal agency allows them to serve their own self-interest at the expense of the citizens they are supposed to protect. Specifically, Congress specified in law that "authorizes the government to require trained, professional observers on regulated fishing vessels". But their law did not specify who would pay for these observers. So under Chevron, the agency got to decide. And, shocker! They decided they did not have to pay for it.

I don't see what is shocking about it. Are you shocked that you have to pay for your rubbish collection (which is a requirement for living in many places)?

> This ruling stops that specific abuse, and hopefully many others. The actions of federal agencies is not generally a thing to be desired.

It seems like people don't understand how the system works.

Congress cries about Roe vs. Wade, but the power is entirely in their hands to pass federal law to secure abortion rights.

It's like the police crying that someone should do something about crime.

I think they’re doing ok.

In 10 years when people wonder why their rivers are glowing green and everything in the ground is dying and there's a weird smell in the air, and corporations are just allowed to decide you pay them for no services and there's nothing you can do about it...this decision is going to be the reason.

It looks like Thomas' and Alito's benefactors finally got what they spent most of the last decade trying to buy.

Why not? Why can't Congress write complete regulatory statutes? Isn't that literally their job? Yes, it is. "Chevron defense" has been a way for Congress to shirk its duty for decades. If the law is ambiguous, courts must resolve the ambiguity. That is exactly what courts are for. To say that it would be better for an opaque, appeal-proof bureaucracy to have the final say was a ludicrous step on the path to our ever-growing executive tumor.

The tone of your quotes from Kagan give the impression that federal agencies are "responsible" and able to use "discretion". But agencies are political animals, subject to the whims of the current president, who can potentially change every four years. Courts are much slower to change, and much less vulnerable to the political whims of the current administration.

So many people are polarized and focused on winning presidential elections so they have their hands on the levers, that they never question whether the levers should be there in the first place. Perhaps politics would not be so polarized if the President did not have so much power, and the stakes were not so high.

No, it's not. That's like saying it's the CEO's job to write every design document in a company.

It not only doesn't make sense -- it's not even possible from a perspective of information throughput.

It sounds like you're saying that Congress should approve drugs rather than the FDA. Absolutely not. Congress should write the regulations that govern how the FDA operates, and then the FDA should operate.

And let's remember -- if Congress doesn't like what a regulatory agency is doing, it can pass legislation to change that. If it doesn't, we can assume it approves. Therefore the courts have no business stepping in -- except obviously when there is genuine conflict between laws or with the constitution. But that's not what you're talking about.

The case before the court is a good example of how the opaque and unaccountable nature of a federal agency allows them to serve their own self-interest at the expense of the citizens they are supposed to protect. Specifically, Congress specified in law that "authorizes the government to require trained, professional observers on regulated fishing vessels". But their law did not specify who would pay for these observers. So under Chevron, the agency got to decide. And, shocker! They decided they did not have to pay for it.

This ruling stops that specific abuse, and hopefully many others. The actions of federal agencies is not generally a thing to be desired.

I find it interesting we are discussing a case where precedent was overturned, and you are suggesting precedent will fix something.

But laws can't do that in infinite detail. It's literally impossible. So it's not a straw man at all -- that was my point.

At some point, regulatory agencies, like anything in the executive branch, have to decide for themselves how to get their job done. Because they have to do that a million times every day.

If Congress didn't specify who will pay for the observers, it makes much more sense to leave it up to the agency than to the courts, except in cases of obvious abuse, corruption, etc. -- which this does not appear to be.

I agree it sucks that the fishing vessels have to pay for the observers, but it seems obvious to me that the body to fix that is Congress. If the fishing industry can't get the agency to change it, then they should be contacting their Congressional representatives to change it. And Congress either will or won't, but that's literally who is in charge of this.

It seems like a strange issue for the courts to get involved with, because there's no conflict with other laws or with the constitution.

If Congress is unhappy with how this plays out, they're completely free to clarify any sections that get challenged.

Kagan agrees that executive agents are more political and shorter-lived than judges. Which is part of why she dissented. A federal judge has no constituents, no chance for replacement if the will of the people is ignored. A bureaucrat is appointed by an elected President, so there's at least an indirect avenue for accountability by the people.

>If the law is ambiguous, courts must resolve the ambiguity.

If it's a matter of law, the courts did resolve disputes in step one of the Chevron deference system. Federal Judges are considered experts in law and Congressional actions. If the dispute falls outside of the legal framework (e.g., Kagan's examples of which new polymers count as proteins, or reasonable ways to return the sound level in a national Park to a near-natural state), then the judge went to step two of Chevron deference: defer to the subject-matter experts in the agency. It is ridiculous to expect a judge to get a crash course in hundreds of complex fields that could actually prepare him or her for an informed ruling. Deferring to the people who've studied and practiced the topics seems like the better choice.

That’s not constitutional.

But she delivered her dissent orally and framed it broadly, signaling that there is no possibility of reconciliation.

That unfortunately will lead to less balanced decisions.

As for Chevron, this decision vastly expands the scope of political franchises by putting a brief review by a single (lifetime-appointed) federal judge on par with the entire administrative law process with hundreds of stakeholders and experts. It's not a win for rationality or settled expectations; it injects risk into every regulated field.