Isn't the only reason the Supreme Court would not sustain a law is because it is unconstitutional? And otherwise their only role is to interpret laws? At least that's the way it is supposed to be AFAIK.

But that’s not really how it works, is it? The court is more interested in pushing an agenda than playing its role in balancing the other branches of government. It’s obvious in the way they defer to precedent when it suits them and throw it aside when it does not.

Nevertheless, the constitution does forbid this, and the decision is correct.

Where exactly does the constitution forbid “this”?

No, the court can also say that two laws are inconsistent. In this case, there is a judicial ruling (Chevron) that has stood for a while, that they are saying is inconsistent with a law (the APA). The constitution is not in this ruling at all. Generally, laws override judicial rulings unless the constitution is in question.

Can the Supreme Court ever declare two Constitutional clauses to be inconsistent?

I doubt it, but I'm sure they can "interpret" them to consistency.

Sometimes they get it wrong.

I suppose Congress could use its power under Article III’s Exceptions Clause to strip the federal courts (including the Supreme Court) of jurisdiction to hear cases challenging an agency’s adherence to its enabling statute. Courts would still always be able to hear constitutional challenges, of course.

And wouldn't this court still take this kind of challenge on constitutional grounds? That congress has no power to give legislative authority to an executive agency?

I assume so, as they should, since the constitution forbids it. This was the whole point of the separation of powers.

If Congress thinks they shouldn’t have to do the work of legislation, then they can all quit and we can elect people who are willing to do the job we elect them to do.

You know, maybe it's time to overturn Marbury v. Madison. An originalist like Alito should have no problem admitting that the constitution never granted the court these powers in the first place.

What's that I hear you say, he won't do it because it would hamper him personally? Well, bless his heart!

Alito is as much an originalist as he is a vampire squid.

I am likely to believe he is one of those. Guess which one.

Definitely the vampire squid.

SCOUTS hasn't had a real originalist in like 200 years.

You know something the Constitution doesn't say? It doesn't say that you should only interpret the Constitution based on what it says. Therefore, the originalist position is self-contradictory, because it's not contained in the Constitution.

> …the Constitution doesn't say… that you should only interpret the Constitution based on what it says.

So we should interpret it based on the things it doesn’t say?

The problem with interpreting the Constitution is that a lot of things are left unsaid or undefined. There is a wealth of writing outside the Constitution that helps clarify what was intended when the text of the Constitution is ambiguous, such as the Federalist Papers.

Alito's originalist position is that he can reject using such contemporary sources, that he can reject all precedent, and interpret the ambiguous portions of the Constitution however he wants.

---

Incidentally, one of the clear intentions of the framers of the Constitution was that the future should not be chained to the tyranny of the past. This sentiment was pervasive in the Revolutionary era. It was intended that future generations would need to make the document work for their own times, and not constantly be second guessing what the deific Founders said. Check out the writings of Madison or Adams or Jefferson or Franklin sometime. They did not want to be deified.

Alito said "[the Constitution] means what people would have understood it to mean at the time it was written." One can certainly accuse Alito of cynically ascribing modern Republican party politics to the framers, but I don't see a "smoking gun" here.

To paraphrase his opinion on Dobbs, ex facto the Constitution grants neither an explicit right nor prohibition to abortion--the framers saw it as a legal "gray area" to give a liberal reading of history--so following the 10th amendment, any regulation of abortion should be devolved to the states. Perhaps it is better if abortion were nationally legalized, but Alito's opinion seems reasonable if we are following the rules to the letter.

Re: the Founders, they do not write about the "tyranny of the past" nearly as much as they write about plain ol' "tyranny" of living govts--maybe the closest is Federalist No. 14 or Thomas Jefferson's 1816 letter to Samuel Kercheval "We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors." Conversely, we can find tons of examples of the Founders being inspired by classical/traditional sources e.g. Greek (Plato, Aristotle, Plutarch), Roman Cicero, Polybius), the bible, English Common Law etc. It is clear the Founders were neither iconoclasts nor Trotsky-style "Permanent Revolutionaries."

>"You know, maybe it's time to overturn Marbury v. Madison."<

"Why, the very idea..."

Under this court's approach the interpretations of the constitution from around the time of adoption of it count as strong evidence for its meaning today. So this approach would not work for you.

The Iron Law of Bureaucracy says that the court would never reverse Marbury.

Plus Marbury is too inside baseball for it to get reversed via constitutional amendment.

Who would then make sure that laws are constitutional?

Any power not explicitly granted the Federal government in the Constitution devolves to individual states, so each state would have the power to decide constitutionality as a matter of state law.

If we're going by a strictly textualist interpretation of the Constitution then this is the only valid option, barring a Constitutional Amendment to actually give the power of judicial review to the Supreme Court.

Is it absurd and insane? Yes. But so is determining law by in essence conjuring the ghosts of dead men.

> You know, maybe it's time to overturn Marbury v. Madison

You mean the precedent liberals used to completely and un-democratically reshape the American republic in the mid-20th century—everything from taking religion out of schools to deciding that towns couldn’t shut down strip clubs “because free speech?”

Conservatives will 100% take you up on overturning Marbury.

If congress doesn't like how federal agencies implement the law they are free to pass laws to clarify their intent. They don't need unelected and unaccountable Justices to do that for them.

The whole point of courts is to be the place of judgment as to whether a law is actually being violated or not.

Let’s try it like this: “If Congress doesn’t like how police implement the law they are free to pass laws to clarify their intent. They don't need unelected and unaccountable Justices to do that for them.“

The whole problem is that without that branch of separated power, the police/federal agencies can do whatever they want, regardless of what the law says. Congress could pass new laws every year that say things like “No, we really meant it, police can’t randomly arrest people and keep them in jail forever.” But there wouldn’t be any way to judge whether they are doing that.

Unless the world turns to 1s and 0's, execution of a law will always in part depend on interpretation of the law by the executor. To pretend otherwise is to mistake ideals for reality.

Who is pretending otherwise?

Also, when those executors of the law are determined to be the sole arbiters of what the law means without any appeal or restraint, then the “they are experts” ideal has been mistaken for reality.

Imagine if the courts deferred to the police way more, because they are experts on what “crime” really is and know what the written law should be interpreted to mean. Oh, and let the police be the judges and run their own courts, too.

And I suppose that soldiers who are in the middle of combat shouldn't be able to choose where to point their rifles without congressional approval? Do we need a bill for each new weapons system, since their procurement and use won't have been specifically called for in statute? Etc.

Congress already decides how much to spend and on what weapons systems for the various branches of the military.

Meanwhile, you need to brush up on your civics knowledge. The authority to command the armed forces is directly under the executive, which is why the President is the “Commander in Chief.”

In other words, these are not problems, either in the real world way things work (like the EPA has problems now after this decision) or in a constitutional sense.

> Congress already decides how much to spend and on what weapons systems for the various branches of the military.

Congress directs some times and defers other times. Congress absolutely does not direct every pentagon spending program.

> The authority to command the armed forces is directly under the executive

The EPA is an "executive department" as described by article two of the constitution the same as the department of defense. If the founders expected congress alone to execute executive authority (except in the special case of the military) then the constitution would have been written that way and the EPA would have been created as a body that reports to congress. Congress was obeying the constitution when they created the EPA under the president, just as they were when they created every other executive department.

My argument is that we have been lax with the separation of powers. Congress is required to declare war before the President can direct the armed forces into combat, for example. This has failed recently. Congress also must not declare a permanent generic war, and then leave it up the the executive branch free to do whatever it wants with the military. Or, if they declare war on French Guiana, that doesn’t give the president freedom to attack Georgia.

The argument is not that the EPA should report to Congress instead of the President. The argument is that the EPA should be limited to doing what the laws Congress passed actually says. It is the executive branch’s responsibility to implement the law, not create, implement, and judge cases like they have been doing.

You're completely right; my thought experiment was half-baked. A challenge to an agency's use of delegated power is necessarily a constitutional challenge. So, unless Marbury were overturned, this wouldn't fly.

Congress could do that. But I don’t think democrats would like what the next Republican administration would do with that precedent.

You do realize the dems doing something and the reps following up with the same thing, doesn't somehow stop the republicans for just doing it themselves lol,

I'll never understand this bullshit stance "democrats cant do it because then maybe republicans will do it later" ... i mean how does not doing it ever stop republicans from doing it anyway later lol... this stance is what has fucked democrats for decades, this obliviousness that republicans have no issue jumping directly to extremes, like saying ROE was settled law and then overturning it in a fucking massive partisan ruling.

Overruling Roe wasn’t “extreme,” it was literally the lowest hanging fruit on the tree. At the time it was decided, a prominent law professor noted that it’s “not constitutional law and gives almost no sense of an obligation to try to be.” It was the left’s version of Lochner—a decision so irrational that by the end liberals could only defend it on the ground it was precedent.

On top of everything else, Roe was an aberration internationally. When Macron criticized the U.S. Supreme Court for overturning Roe, he got the French people to approve an amendment to add an abortion right to the French constitution. Of course, French courts wouldn’t just gin such a right into existence from thin air, because they’re not lawless. I don’t know if anyone picked up on the irony of that.

The real chumps are Republicans. They should appoint justices that will create the conservative version of the Warren Court. Adopt Democrats’ preferred “emanations from penumbras” standard for interpreting the constitution. I bet you can find some cool stuff in “emanations from penumbras” of the second amendment, the contract clause, etc.

Like the right to bear arms?

There is no literal reading of the second amendment that grants gun rights to individuals outside of well regulated militias.

Sure if you ignore literally every fucking justices testimony before congress stating "Roe v Wade is SETTLED LAW, it shouldn't be touched"

They lied to fucking congress

Or go the European way and require regulations to explicitly list which act(s) of Congress they are based on.

sorry, can someone explain this to someone who gave up on the article at the first bullet point, nor had enough sleep (and so is too lazy to look up everything)

thanks!

Long ago Congress passed laws delegating a lot of rulemaking authority to the executive branch, the idea being that Congresspersons and their staff aren't deep-knowledge experts in most fields, and a lot of detailed rulemaking is best left to non-partisan career government employees (which, however, are usually guided by partisan political appointees, unfortunately). This is potentially dicey where the constitution is concerned: one of the foundational principles of the US constitution is separation of powers, and giving the executive branch what is essentially legislative power is maybe not in line with that.

But Congress did it anyway, and the SCOTUS has over the years upheld it. There was a landmark court case involving Chevron (the oil company). SCOTUS ruled there saying that the executive branch agencies responsible for rulemaking are experts in their fields, and we should mostly defer to them when their position seems reasonable, and when Congress hasn't passed a law that contradicts what they want to do.

Marbury is a much older case, that made precedent the idea that courts have the ability to strike down laws that they believe violate the constitution.

The current conservative-leaning SCOTUS is skeptical of what conservatives call the "administrative state" (basically: rulemaking done by the executive branch). They seem to not be a big fan of "Chevron deference", and are fully willing to exercise their Marbury-affirmed power to strike down executive actions that they don't believe are constitutional, or don't believe directly stem from laws Congress has passed.

I think this misses an important distinction. The issue here isn't the extent to which Congress can delegate rule-making authority to executive agencies. Those bounds haven't been moved. The issue is how how much deference courts are to give agencies when deciding when an agency-made rule reasonably adheres to the purpose and function of a statute. In theory the degree of deference shouldn't matter--agencies' retain the same rule-making authority and flexibility as before--but as a matter of process it absolutely does.

SCOTUS invented the Chevron doctrine because it believed at the time courts were too quick to second-guess the logic behind agency rule making, and in doing so unnecessarily and improperly inserting themselves into technical debates as well as broader political debates. IOW, the court was primarily concerned with people using the courts to subvert executive prerogatives and electoral politics. The concern now, apparently, is that administrations are using agency flexibility to subvert electoral politics.

Then and now, by moving the threshold for when courts can second-guess federal agencies, it's effectively altering the rights and responsibilities between Congress and the President, as well as between those two institutions and the electorate more broadly.

> The concern now, apparently, is that administrations are using agency flexibility to subvert electoral politics.

That's very charitable. A less charitable view might be that their concern is that regulatory bodies and other executive agencies are standing in the way of personal and corporate profits, and that overturning Chevron means that the courts can now cripple the ability for federal agencies to function by overruling the reasonable interpretations of statute those agencies have been operating under all this time and instead limit them to only the most narrow interpretation of the law. Law that has, for decades now, been being written under the assumption that Chevron exists, and not with the expectation that an adversarial judge will try to undermine the intention of the laws being passed.

That's very charitable. A less charitable view might be that corrupt, know-nothing political friends use their ability to "interpret a gap" to make sweeping legislation with no accountability and in-house courts, then use selective enforcement for de facto bribery in a revolving door of public-private scheme to extort the productive sector of our country, and give to the useless rent seekers.

Wouldn’t a system where you need bribe a large number of bureaucrats (who might have differing opinions and priorities) still be more robust than one where you just need to bribe a couple of corrupt Supreme Court justices like now?

> the useless rent seeking politicians and their cronies.

Courts are largely politically appointed. Why are judges necessarily more trustworthy in your opinion?

I was just bootlicking the Fox news narrative as hard as you are bootlicking the NYT. It was parody.

My real opinion is that no one is more trustworthy than the other. They're all people. But there are constitutionally delegated duties given to each branch that we've gradually eased over the past century, and between Jarkesy disallowing in-house courts for certain types of crime, the resurgence of the non-delegation doctrine and now the overruling of Chevron, SCOTUS thinks this delegation is not optional. I personally agree with them hesitantly, but predicting the future is hard, and there are some actions they take where I think the consequences are obvious, but this is not one of them, and I would have slept no more or less soundly if this case had come out the other way.

I feel like if instead of deferring to the EPA, the Chevron case was deferring to police departments interpretations of the law when the law was ambiguous, we would be cheering this decision as a return to sanity. I wouldn't want the default assumption of the courts to be that when the law is unclear, whatever the sheriff or the highway patrol decides is illegal this month is, and next month or next election it could be something else entirely. In such cases I would absolutely want the courts to evaluate that ambiguity by treating both sides of the argument equally and weighing the law as it stands. So it seems like it should be the same when it comes to regulatory rule making as well. If the law is unclear, deferring to the enforcers of that law seems no different than deferring to the cops. The court system and the government as a whole is already institutionally biased towards the government, without any need for an explicit policy to prefer the government's side.

I don't think people will appreciate it when they have to buy bottled water because all the aquifers and lakes are full of heavy metals from manufacturing upstream. It really is part of Project 2025 and has been in the works for a while now. If they don't like the bureaucracy, Congress has full powers to remove it there was no reason to gut all regulation so they can be tied up indefinitely in court and our courts are overwhelmed by challenges so that every decision takes 15 years to work its way through court.

> I feel like if instead of deferring to the EPA, the Chevron case was deferring to police departments interpretations of the law when the law was ambiguous, we would be cheering this decision as a return to sanity.

I doubt it. I think most people have some federal agency they aren't a huge fan of. Sure, the fact that Chevron helped to allow the EPA keep your air and water from being poisoned by greedy corporations who would do it in a second if it would make them more money helps to make it a more sympathetic cause, but it's not as if people aren't aware that the defense applied to every other agency too.

> I wouldn't want the default assumption of the courts to be that when the law is unclear, whatever the sheriff or the highway patrol decides is illegal this month is

That isn't a fair characterization of the situation. Even forgiving that the police aren't a federal agency, first a question around the legality of what the police were doing would have to reach the court in the first place, then the court would have to determine that an ambiguity in the law existed, and then the court would have to decide if the interpretation of the law that the police has been using is reasonable and only if it wasn't would the court impose its own interpretation. That seems pretty fair even in the case of the police.

It's not about deferring to the enforcers of that law. It's about deferring to the law first, and only imposing a narrower interpretation if the enforcers of that law were already out of line. It just means that agencies aren't limited to the most narrow interpretation of the law as written.

>That isn't a fair characterization of the situation. Even forgiving that the police aren't a federal agency, first a question around the legality of what the police were doing would have to reach the court in the first place, then the court would have to determine that an ambiguity in the law existed, and then the court would have to decide if the interpretation of the law that the police has been using is reasonable and only if it wasn't would the court impose its own interpretation. That seems pretty fair even in the case of the police.

There are of course federal policing agencies, such as the DEA, ATF and FBI, but it doesn't matter because the point wasn't about federal agencies as such. It was about deferring to the enforcers of a law about what the limits of their powers are, which just seems like a terrible idea at all levels of government.

Was the FBI spying (and more) on civil rights leaders part of their powers as federal law enforcement officers executing their duties? I have no doubt they would say so, and absent a specific law from congress telling them they couldn't, who is to argue that they were unreasonable? Surely we should defer to them as they're the experts in their field right?

If the secret service started shutting down cell towers within a 10 mile radius of presidential rallies, well that's just common sense protection against remote explosives and well within their directive to protect the president right? They are the experts on this after all and have wide latitude to do what's necessary. No need for the courts to review that action or the laws surrounding it.

> Was the FBI spying (and more) on civil rights leaders part of their powers as federal law enforcement officers executing their duties?....Surely we should defer to them as they're the experts in their field right?

It's a fantasy to think that this will mean state spying powers will be reduced.

> absent a specific law from congress telling them they couldn't, who is to argue that they were unreasonable?

The courts are! They always have been, even under Chevron. If at any point a judge thought that the FBI, ATF, DEA, NSA, or <insert three letter agency here> interpreted the law unreasonably, or extended their authority beyond what was allowed that judge had the power under Chevron to impose the court's own interpretation of the law on that agency.

The Chevron defense said that if the court agreed that an agency had an interpretation of an ambiguous law which was reasonable and permissible the court couldn't impose a more narrow standard on them. Because it's been overturned it now doesn't matter if the court thinks that what the agency was doing was reasonable and permissible, the court can inject it's own interpretation anyway.

Chevron prevented the court from forcing the most narrow interpretation of the law on a federal agency in cases where the court couldn't justify doing it. That's it. Now that protection is gone and I promise that it's not going to make you more free or better off. It means that any and all of the rights and protections you have today thanks to federal agencies are at risk of going away as soon as a case goes in front of an activist judge

>It's a fantasy to think that this will mean state spying powers will be reduced.

Never said that it would, I said allowing enforcers to set the extent of their own powers is a bad idea.

>Chevron prevented the court from forcing the most narrow interpretation of the law on a federal agency in cases where the court couldn't justify doing it.

Federal agencies (indeed any government agency) should always be subject to narrow interpretations of the law when the extent of their authority and powers are in question. If that interpretation is too narrow for Congress, then Congress needs to be more explicit about their intent. The law needs to be as clear as possible. Ambiguity is a flaw not a feature and the fact that ambiguities can lead to problems means we should make better law, not throw our hands in the air and let whoever's in charge this week decide what the policy is. If we want a massive federal agency to oversee something then the extent to which that agency is empowered and what that agency is empowered to do had better be explicitly spelled out.

To support what Autoexc is saying - this is effectively an argument about the theory on one side, and the practical reality of intentionally skewed judiciaries, a grid locked and obtuse congress - which in turn is driven by groups with a common cause.

The law, in most cases, is about the practical application of an ideal (the law) to reality (the case).

If things weren’t so lopsided and blatantly partisan, then yes, the theory would matter. It would probably be a prosaic and boring decision.

This court is not only engineered to lean heavily in one direction, it is also being fed cases based on that common agenda.

In addition - we cannot avoid ambiguities unless we have powers of foresight that make the entire governing edifice irrelevant.

No one could predict the capabilities or failures of this generation of LLMs for example. There is no better “law”, unless it is an act that gets updated on a near monthly or quarterly basis.

This is a timeline that a congress is not suited to manage. This is definitely something that an agency of some sort would.

Finally - Saying that bureaucrats and experts are biased, but to leave out the bias of the courts feels unfair.

> There are of course federal policing agencies, such as the DEA, ATF and FBI, but it doesn't matter because the point wasn't about federal agencies as such. It was about deferring to the enforcers of a law about what the limits of their powers are, which just seems like a terrible idea at all levels of government.

What’s more, these agencies—particularly the ATF—love to make up, out of whole cloth, completely new rules that are contrary to their own previously-expressed rules that have the effect of retroactively turning millions of law-abiding people into felons overnight.

That’s a good example, but it goes even deeper than that. Chevron itself was a case that reversed a judgment in favor of an environmental organization written by Ruth Bader Ginsberg (when she was a D.C. Circuit judge), and siding with the Reagan EPA.

> I feel like if instead of deferring to the EPA, the Chevron case was deferring to police departments interpretations of the law when the law was ambiguous, we would be cheering this decision as a return to sanity.

In the original context of the 1984 Chevron case, environmentalists were arguing that the EPA had redefined "source" in an overly narrow way, much narrower than Congress had originally intended in passing the Clean Air Act, thereby enabling companies to emit more air pollution. The Chevron decision was seen at the time as a loss for environmentalists and win for the corporate sector and conservatives.

It's funny how the tables have turned – a decision which was originally praised by conservatives and condemned by liberals and environmentalists, eventually ends being condemned and overturned by conservatives, while being defended by liberals and environmentalists. Both the 1984 case and the 2024 case had a conservative majority, and were perceived at the time as furthering conservative political objectives.

I think what's really happened: in 1984, the federal judiciary was widely perceived as liberal-dominated, while the federal bureaucracy was seen as relatively more conservative, so liberals wanted the judiciary to be more powerful than the bureaucracy, conservatives wanted the opposite. In 2024, the situation is reversed: now the federal judiciary is perceived as being increasingly dominated by conservatives, while the federal bureaucracy is viewed as being more liberal, so now liberals want to defend the bureaucracy's power against judicial encroachment.

It looks to me like the only thing that's constant here – on both sides – is "the ends justify the means".

I'd just love to see them keep this same energy when dealing with the actual police and end qualified immunity. They won't. But it would be the right thing to do.

The reaction to this case—which decided nothing other than courts should be the ones to interpret laws, something obvious to any child who has taken 8th grade civics—confirms my suspicion that democrats just don’t believe in the rule of law.

The law includes precedent.

If the court had a 50-50 split, then yes, your argument would carry merit. We can all disagree with court rulings, especially if we have experience in a domain.

Our opinions can be right or wrong. However I think everyone can agree that a skewed court will never be trusted when its majority votes along party lines.

What is a “skewed court?” We had a Democrat-majority court for decades after FDR won a series of key elections. We now have a Republican majority court because of Reagan, Bush, and Trump. Biden’s recent implosion will likely cement the 6-3 majority for some time.

Democrat-appointees made huge changes to the constitution when we had a “skewed” court going the other way. I think those decisions were terribly wrong as a legal matter, but what’s dangerous is the effort to make it seem like they were illegitimate through the rhetoric that’s being spewed these days.

This is an old comment, but I thought it was worth addressing since it brings up the point of rhetoric.

The current crop of judges is absurdly partisan. This is no ordinary position, these judges are not regular Joes. Their opinions, their intellect, their fairness and open mindedness to address a case on its merits, is what their entire life time appointment is about. Being a Judge.

Read Alito's dissenting opinion on Murthy. He depicts (not interpret) the whole case as government censorship.

Mind you, this is the case where the government would have had to invent time travel to be culpable. > Plus, Facebook started targeting her content before almost all of its communications with the White House and the CDC, page 3- https://www.supremecourt.gov/opinions/23pdf/23-411_3dq3.pdf

It seems that congress is much quicker and more willing to correct overreach by the executive branch through legislation compared to overreach by the judiciary — especially at the Supreme Court level.

LOL. Have you seen the state of congress in the last decade? A rotten dead fish would be quicker to correct about any overreach than the US congress.

Yes. I simply meant a relative comparison between the two. Agreed otherwise

It's worth noting is that at the time the EPA's position was _in favor_ of Chevron, while the agencies right now tend to be a lot less corporation-friendly (hence the need to overturn the precedent, some say).

Also worth noting is that the head of the EPA at the time was Anne Gorsuch, mother of Justice Neil Gorsuch.

And Neil Gorsuch concurred in the court's majority opinion!

> Long ago Congress passed laws delegating a lot of rulemaking authority to the executive branch […]

By "long ago" the delegation was first mentioned (AFAICT) in 1825:

> It will not be contended that Congress can delegate to the Courts, or to any other tribunals, powers which are strictly and exclusively legislative. [23 U.S. 1, 43] But Congress may certainly delegate to others, powers which the legislature may rightfully exercise itself.

* https://caselaw.findlaw.com/court/us-supreme-court/23/1.html

This is completely wrong. Chevron is about the Clean Air Act, which required Chevron (the oil company) to get a permit for every pollution “source.” The Reagan EPA interpreted the word “source” in the statute to mean an entire plant, not an individual pollution source (like a smokestack). It was sued by the Natural Resources Defense Council, who argued that the law requires Chevron to get a permit for every pollution source.

The D.C. Circuit, in an opinion by Ruth Bader Ginsberg, sided with NRDC. But the Supreme Court reversed, ruling in favor of the EPA (and Chevron). The Supreme Court said that the court had to defer to the EPAs interpretation of the word “source,” even if the court thought that wasn’t the best interpretation of the law.

Can court override the power of congress to put Chevron into law? Have there been instances where court struck down a law passed by congress before?

The court will be very zealous of its power (from 1803, in Marbury v. Madison) to decide that laws are unconstitutional, so yes, if the court things a statutory codification of Chevron is unconstitutional, they will so rule.

However it's also very unlikely that Congress will pass Chevron into law, and the text they might write might be narrow enough to pass constitutional muster, so until then this is a purely academic question.

Couldn't congress explicitly strip the courts of their authority to review the Chevron-codifying law in the text of that same law?

Congress can define the court's jurisdiction, but that's a very broad tool. By and large Congress doesn't do that. I suspect that it would be more practical to pack the court.

Why is the potentially decades-long process of packing the court easier than inserting a section in a bill that says “btw, judges can’t review this specific law because it’s specifically written to revoke your recent power grab.”

Packing the court worked the last time when they tried to get in the way of the New Deal.

Which ended up destroying the American republic and the constitutional system.

I don’t recall the collapse of the republic or the constitutional system, just decades of growing prosperity and rising standards of living culminating in the 1950s, the era everyone is desperate to return to.

For economic reasons unrelated to what was going on in the legal system. But the mid-20th century also saw a gutting of the constitutional system the founders had created, and replacement thereof with an unelected administrative state.

You might want to read the room. Not just in the US, but across Europe as well, people are angry about their democracy having been stripped from them, and rule by unelected, unaccountable experts.

Anti-intellectualism is nothing new, we’ve always dealt with spasms of it and the current one will pass. When you say unelected experts what you’re referring to are non-crony public servants who aren’t subject to the spoils system of party politics. No modern democracy could function without them. Extremists hate them because they offer a competent buffer against the chaos they hope to unleash.

It's not about "anti-intellectualism." I think cognitive elites, of which expert bureaucrats are a part, are critical to running society. But they have a moral obligation to stay in their lane. Elites must use their capabilities to do what the public wants them to do. Both in the U.S. and Europe, they have not been doing that, but instead have been abusing their authority to impose their own ideologies.

Consider the 2016 "Resistance" by federal employees to the election of Donald Trump. The public had clearly voted against immigration and free trade. At that point, the job of the federal bureaucracy was to put aside their own views about whether immigration and free trade were good things, and use their skills to implement the agenda of their duly elected new boss. Instead, they publicly and vocally declared their insubordination, both to the President and the public who elected him. Likewise, during the 2020 George Floyd riots, you saw public health experts allow their moral ideology to affect their expert recommendations--treating religious gatherings as somehow being different from social justice gatherings.

My belief is that these things directly led to the debacle of the pandemic, when people refused to trust experts on vaccination--despite Trump telling them to take the vaccine. My dad spent his life working as a public health expert in the third world, and what happened was, while disappointing, not a surprise to him. A huge part of public health work is getting people to trust you. And you must earn that trust by putting the job first. If you go into a village in Bangladesh and people don't want to be treated by a woman doctor, you provide them a male doctor. You don't chastise them for their "sexism." My dad actually worked for a Planned Parenthood affiliate in Bangladesh. At least back in the 1980s, they were providing family planning services consistent with local beliefs, and not trying to impose western ideals on the public--something that would have swiftly destroyed trust.

Most people who aren't that smart understand that and are deferential to their betters. But they also have an intuitive and accurate sense of what's an exercise of expertise, and what's a moral or political judgment. And when experts step out of their lane, they destroy the trust that's critical to doing their jobs.

> Elites must use their capabilities to do what the public wants them to do.

It’s of course ridiculous to expect the city bus driver to take a public opinion poll before they do their job. Public servants get their orders from their managers who are appointed by public officials. That’s their “lane.”

People have a problem with this because they expect that when they elect radicals, the entire state apparatus immediately becomes as radical as the demagogue they managed to get in office. The fact it doesn’t work this way is a feature, not a bug.

> It’s of course ridiculous to expect the city bus driver to take a public opinion poll before they do their job.

"Their job" is to shut up and drive the bus, according to the routes selected by the duly elected government. They don't get to use their position to push back on the government because they think they should be driving somewhere else. And they should be fired if they do so.

> People have a problem with this because they expect that when they elect radicals, the entire state apparatus immediately becomes as radical as the demagogue they managed to get in office. The fact it doesn’t work this way is a feature, not a bug.

That is exactly what it should mean. If the people elect someone who promises radical change, a functioning democracy should be responsive to that! Resisting the policy agenda of the elected government is not a legitimate function of the bureaucracy. And it's absolutely a "bug," not a "feature." I can't think of any constitutional system that envisions the bureaucracy serving as a check on the policy choices of the elected branches of government. Certainly, there is no such concept in the U.S. Constitution, which lays out a comprehensive system of checks-and-balances.

What you're saying is exactly the anti-democratic power grab I'm talking about. It's experts thinking that their education somehow validates their policy preferences, and that the point of elections is simply to provide some sort of signal to the permanent bureaucracy to evaluate according to their independent judgment and discretion.

> "Their job" is to shut up and drive the bus, according to the routes selected by the duly elected government.

Ye… You have never seen an incompetent manager that will draw a route of a bus through a brick wall, and yell over the phone ‘why haven’t you driven through it?’

More broadly, do you hate the idea of employees having opinions and their own initiative? Is your boss tells you to set the company building on fire, will you do it? If you are told to drive over a child, will you do it?

I feel like you are being an ideologue and you like how things work in your head, without realising that if everyone did exactly what their boss tells them, society would collapse within a week

> More broadly, do you hate the idea of employees having opinions and their own initiative?

I hate the idea of people working for the federal government resisting the policies it’s their job to implement, because they have policy disagreements with the duly-elected leaders.

There are ample policies and procedures for dealing with insubordination. Was there something in particular with the “resistance” you can point out? I never heard of any it amounting to anything other than some occasional clickbait.

I can’t remember at the moment precisely which old British Lord said this in the context of Indian independence but the quote goes something along the lines of democracy is only going to last if the program voted in isn’t a complete revolution, there has to be some continuity reflecting the demos, and expecting a complete overturning and revolution by votes is going to destroy the system.

Of course Government of India Act was not a great system at any rate and you’re probably not a fan of the UK one either.

[delayed]

You should probably read Stewart Alsop on the decline of the WASP Elite

> The public had clearly voted against immigration and free trade. At that point, the job of the federal bureaucracy was to put aside their own views about whether immigration and free trade were good things, and use their skills to implement the agenda of their duly elected new boss.

You mean a new boss put in place by an Electoral college, which didn't represent the majority of the people? Majority of the country didn't vote for the 2016 President

You mean the guy who won the only contest that anyone was trying to win? You can complain that San Francisco would have won the Super Bowl if field goals were only two points but we have no idea who would have won under different rules.

Trump won the vote that determines who represents the people in the federal government. There was no other vote. You can add up the individual state votes, but that is a meaningless number because nobody is trying to win that. Fun fact: Trump also would’ve won under the rules used by most other advanced democracies for selecting the executive, because his party won both the most seats and the most absolute votes in the House. But that counterfactual also is irrelevant.

The general issue with your comment is _just_ the president was donald trump.

He's not the governor of a single state so when those states issues stay at home orders conflicting with his direction that's just federalism in action. And then you need an act of congress to override the states like with slavery.

I’m not talking about the Covid lockdowns. I’m talking about 2017 when federal employees declared their “Resistance” 59 their duly elected boss.

That sounds equivalent to writing an unconstitutional law and tacking on “btw, you can’t rule that this law is unconstitutional”.

Which is actually possible to do by amending the US Constitution, but good luck with that.

Marbury itself has no basis in the constitution. Congress can gut the powers the courts have carved out any time, what I’m suggesting is that it can be done with a surgical strike rather than going nuclear.

This is a brave comment given that we are about to get 4 more years of Trump and probably a Republican house and senate.

Ironically Marbury was about Congress gutting the courts. Jefferson's Congress canceled 18 federal courts, leaving 18 judges (appointed by Adams at the end of his term, and who had not yet been seated) with no court to sit in! The case was a suit to force Jefferson's Secretary of State (Madison!) to give those new judges their commission. Marbury is a fairly complex case.

Anyways, Adams' 18 judges were not sat. This could happen again: just close out a bunch of judges' courts -- they'll still be judges for life, but judges without a court.

Yet everyone has accepted Marbury. No one questions it. The reason is that it makes sense in the context of the constitution.

This court has gone a long way to say that vibes aren’t a sufficient level of clarity anymore, so it’s only fair that this can work against the court’s allocation of power as much as it has worked for it.

Because the court can say that's not how you define its jurisdiction. I don't really know, to be sure.

If they believe Chevron is unconstitutional, sure. And there's certainly an argument for it on separation-of-powers grounds.

They don't believe it's unconstitutional. They believe it conflicts with the Administrative Procedure Act from 1946. Something that they apparently believe the unanimous decision in Chevron from 1984 got wrong.

I know little about US law, but I thought one of the priciples of common law is that once a precedent is set then it is set forever unless changed by statute? Allowing a court to change precedents undermines the whole concept of common law doesn't it?

This is stare (“starry”) decisis, and while it is absolute vertically, it is less so horizontally. Basically the court can decide that it got it wrong before, but the 9th Circuit is bound by a higher court’s precedents (SCOTUS in this case): https://www.law.cornell.edu/wex/stare_decisis

With the caveat that the appeals courts set lots of precedents where the cases never reach the Supreme Court, in which cases the appeals courts are as bound by their precedents as the SCOTUS is by its precedents (i.e., not really).

Yep! And District Courts are bound by the Appellate Circuit Courts above them.

Technically, SCOTUS, as the highest court, isn't beholden to anyone's precedent. This year's SCOTUS is just as legitimate as last year's, so they always have the power to overturn past decisions. Lower courts have to follow what higher courts decide, but SCOTUS has no higher authority. And sometimes, like in Brown vs. Board of Ed (which ended legal segregation), it's a very good thing for the Court to overturn its past decisions.

But in practice, to non-lunatics, stare decisis (the legal principle that says not to overturn, or even consider, topics that have already been decided in the past without an extremely good reason) is an incredibly important prior to bring into any discussion. If the court actually uses its power to completely rewrite the rules of how government works on a whim - and let's be clear, that's what this decision does - then there's no way for anyone to ever make a plan. Nothing is stable.

Unfortunately, at least 5/9 of the current Supreme Court are either lunatics or blatantly corrupt. Chevron was decided unanimously for a reason. There is no way to administer a modern state without that concept - which is why right-wing extremists are so happy to see it gone, because they don't want the state administered.

Yep.

i don't remember my government class exactly but i think the purpose of the us supreme court is to determine if a law is constitutional or not. I'm not sure if it can explicitly strike down a law but declaring it unconstitutional would be effectively the same.

>i think the purpose of the us supreme court is to determine if a law is constitutional or not.

Interestingly, the ability to declare a law un/constitutional is not an enumerated power given to the court by the Constitution. The Supreme Court declared that power for itself in Marbury v. Madison and people have just went with it ever since.

It’s not really a separate power. Courts express their understanding of the law. Some laws are statutes, some are the constitution itself. If there are conflicts then the court will express its opinion on which is authoritative. What the Executive and Legislative branches choose to do after the fact are things those branches may do.

It becomes a somewhat circular argument. Through their ruling of Marbury v. Madison, the court declared the Constitution as law. Article 3 of the Constitution gives the court judicial power to interpret law. Therefore, by their own ruling they gave themselves the power to decide what is (or isn’t) constitutional.

Which seems like an enormous power grab on the one hand but I can’t really see any other way for them to be a check on the other branches without that power. There needs to be some legal basis to declare a law invalid. The Constitution (with all of its vagueness at times) seems like the better way than simply vibes.

The Supremacy Clause lists the supreme laws in order: constitution, federal statutes, treaties. If there is a conflict among them then it's natural for the courts to resolve that conflict by deferring to the more supreme item on that list, thus if a law violates -say- the right to due process as enshrined in the constitution then that law must be invalid and the courts must rule as much.

Marbury is an utterly natural consequence of the Supremacy Clause and Article III (and the context of common law).

This is all correct, of course, but misses the main point. There is nothing in the Constitution that proclaims the Supreme Court to be the arbiter of those conflicts. That's what Maybury did.

> Through their ruling of Marbury v. Madison, the court declared the Constitution as law.

The constitution declares itself as supreme law. See the Supremacy Clause:

  This Constitution, and the Laws of
  the United States which shall be
  made in Pursuance thereof; and all
  Treaties made, or which shall be
  made, under the Authority of the
  United States, shall be the supreme
  Law of the Land; and the Judges in
  every State shall be bound thereby,
  any thing in the Constitution or
  Laws of any State to the Contrary
  notwithstanding.

The order in which the supreme laws are given is: constitution, statutes, treaties.

> the purpose of the us supreme court is to determine if a law is constitutional or not

No, it’s to decide cases and controversies [1]. Deciding on constitutionality flows from that.

This case, for example, was decided more on the Administrative Procdures Act than on the Constitution.

[1] https://constitution.congress.gov/constitution/article-3/

That seems unlikely to me. Why do you think so?

There hasn’t been a successful nondelegatiom challenge in like a hundred years.

I gave my reason in the comment you're replying to.

Because they mentioned Marbury? Meh.

They didn't just mention it. The explained that it means that they (the courts) interpret the law. That they decided Raimondo on statutory grounds (specifically the Administrative Procedures Act) doesn't mean that they wouldn't have decided it on constitutional grounds if statutory grounds weren't available. Basically they've left the door open for Congress to fine-tune things a bit, but if they try to enshrine Chevron in law then it's pretty clear that the majority on the court already doesn't think much of it.

> The court decided this on statutory grounds because that's what this court likes to do: base decisions on the narrowest grounds possible. But it mentioned Marbury quite prominently and it's pretty clear that the court will not sustain a law that codifies Chevron.

I'm not convinced you are right. If you look at the conservatives on the current SCOTUS, they aren't monolithic. Thomas and Alito are hard conservatives (with Thomas the hardest), [0] and I'd expect they'd likely do as you suggest and strike down any statutory attempt to reintroduce Chevron as unconstitutional.

But I'm not sure Roberts would be willing to go along with that. As the most moderate of the conservative justices, he was comfortable striking down Chevron on statutory interpretation grounds, repeating that on constitutional grounds might be going too far for him. And he only has to convince one other conservative to go along with him, and with the support of the liberals he'd have a majority. Kavanaugh is only modestly more conservative than Roberts, so he'd be the most likely candidate. I think, if Roberts was to overturn on constitutional grounds a statutory attempt to reinstate Chevron, he'd prefer to do it in the narrowest way he could – striking down that particular attempt, but leaving open the possibility that Congress could have another go at it.

The other thing you have to keep in mind, is ultimately the justices are individuals with their own idiosyncrasies, and they don't always vote the way you'd predict if ideological leanings were the only factor driving their decisions. A good example of that was the Fischer v United States case [1] from the other day, in which SCOTUS sided with January 6 defendants: Jackson joined the conservatives in that, whereas Barrett joined the liberals in dissenting.

I suppose Jackson siding with the conservatives was not entirely surprising; as the most moderate of the liberal justices, she is the most likely to join the conservatives in any case. Barrett's dissent was somewhat more surprising, given she's not the most moderate conservative, with Roberts and Kavanaugh siding with the liberals more often than she does.

[0] https://www.axios.com/2019/06/01/supreme-court-justices-ideo...

[1] https://en.wikipedia.org/wiki/Fischer_v._United_States

It's so narrow that it's out of context. The APA does say "all matters of law" but it's in a longer sentence that makes it clear they mean a legal dispute. Roberts et al cram a huge shift of plenary powers through that pinhole. Regardless of what you think about the administrative state, no one can say with a straight face courts will do a good job of this. We don't even have enough judges to manage immigration and family law cases, and now we need people who are legal experts _and_ subject matter experts in all regulatory cases that come before them? I mean, we'll see what courts think after environmental rights groups file thousands of suits (as the majority seems to think they should be doing) after this.

Or I mean, a different outcome is that we get EPA court. Article III is very short and doesn't design the federal judiciary. Biden could pretty easily just make the EPA a court with lifetime appointments. What an own goal that would be haha.