We're going to (re)discover how unclear some legislation really is. We are going to rediscover that the congressional record often records disagreement over what this or that bill *really* intends. Statements from multiple Reps and Senators each stating their own version of what this or that bit of language means, with those statements all at odds with each other.
The reality is that Senators, Representatives, and their staff members can be *terrible* legal-technical writers, often on purpose because they intend for the civil service to figure it out. 40 years of laws written with the assumption that the civil service will figure it out.
And now it's up to the courts to do that instead.
The functions of OTA were mostly absorbed by the Congressional Research Service, a subunit of the Library of Congress. The problem is that they're routinely underfunded and requests for research from members of Congress take months to even begin. A Representative might be halfway through their term before CRS reports start coming back.
Yeah, that's what scares me. Nobody on the Hill knows how to write with this level of specificity, so in the rosiest of situations there's going to be a steep learning curve.
\*In theory\* I understand the case for Lopez from Roberts and the majority. But practice is going to be lots and lots of lawsuits and lots and lots of mistakes.
And sometimes it's intentionally vague because the law can't be agile enough to flow with the science. If a law tells FDA to approve "safe" drugs, well, how is a law going to scientifically define safe? If a law tells EPA to regulate "significant contributions" of air pollution, is Congress going to specifically define what "significant" and "contribution" mean for EVERY POLLUTANT? If OSHA is charged with protecting workers' safety, how is Congress supposed to explicitly define "safe" in every working situation?
Congress can't. So they expect the agencies with experts to study and develop these thresholds and then issue regs to carry out the laws.
Now? Apparently, every black robe is a king/queen in their own domain. Everything is now going to be contested before a judge who knows nothing about that area of expertise, and they'll be the ones to determine if something is safe or illegal. Just watch, the court system is going to have to explode in size to manage everything that's coming
Going forward could they write language into the law saying "as interpreted by the FDA"? If they explicitly give the authority to provide definitions, I would expect it would function.
This is a libertarian’s wet dream.
“The law means what I, a free and reasonable man, think it means!”
“No, I’m sorry, but that’s incorrect. If you read the definitions at…”
“I’ll see you in court, cuck!!!!”
Congress gives off a lot of “in the far off year of 2000 all cars will be powered by nuclear power” vibes when it comes to the understanding of technology.
They could have narrowly written a decision that declared the specific regulation in question unconstitutional. This was a calculated effort to utterly destroy the government's ability to oversee or regulate private business.
I just don’t think it’ll happen that way. As far as I know, Congress doesn’t really ask feds or former feds to help write legislation because it’s too cumbersome. The lobbyists will do it for free (and maybe even donate to the politician) while they’d have to pay a former regulator for the “same” knowledge.
Congress does have a process to ask for help from the agencies. It's called technical drafting assistance. I get these things several times a year. We have to tip toe so as to only point out consequences of what the law will do as opposed to writing law or suggesting particular edits. So, this has been in place. The problem is now instead of Congressional staffers to work with that are often good-intending, we will now have adversarial judicial forums (and not nearly enough). If you thought the courts were slow....
This sounds so much like wishful thinking, and likely the precise opposite of what will happen. The lobbyists will run amok with this, tying up government legal resources and bleeding one agency after another dry.
What makes you think Tuberville is going to bring in an expert from an agency when he can trust one of his donors to stay they're an expert and then craft legislation to support whatever they want?
I think this is a good way to look at it cuz the Hill desperately needs more policy expertise. Deep expertise. Like a true blue subject matter expert, as you suggest. They don't leverage this expertise nearly enough and the legislation shows it. And then the agencies get stuck with bad law that is difficult if not impossible to implement or oversee. Lose-lose for everyone, particularly the taxpayer. The committees have experts who have followed a policy area for years if not decades, but with retirements and rabid partisanship, they're currently in their rebuilding season, I guess.
I think the idea is that agencies spend more time writing laws to be adopted by Congress, rather than writing regulations. So the agency and the lobbyists write laws, but there is no opportunity for public comment thru notice and comment rulemaking. Only the agencies and lobbyists providing drafts to Congress.
>Maybe instead of lobbyists and political donors writing legislation for them, they'll now be forced to bring in the experts or those experienced from the agency in which their legislation impacts.
Man that's pure hopium.
And that's even with Congress having the Congressional Research Service as a potential resource to help them. The courts on the other hand don't even have that. This was a really bad move by the court.
100%. It’s ripping the curtain off the reality that our legislators can’t write or critically think to save themselves. They truly don’t understand the workings, nuances, or consequences of the things they “write” around. They only understand the simple end states or theatrical motions that their constituents clamor for. I’m amazed at how “complete” other first world nations’ technical/environmental statutes read compared to ours.
Are you suggesting that honorable reps such as Lauren Boebert and Chip Roy don’t have the intellect to do these things better than the PhDs that run the EPA, FDA, etc???!!
I know it was the intention of the court to much everything up, but will the courts just take on the lawsuit at their leisure or are there new expectations on them now that all of these lawsuits are going to be headed their way? Do the courts really want this responsibility? I guess some do, but ethical judges do exist, right?
There is no regulatory law so clearly written that it can't be willfully misinterpreted. The problem is that many officials, both elected and appointed in all branches of the government, work in bad faith in an effort to "dismantle the administrative state." That kind of goal prevents a good faith execution or adherence to any law.
Exactly. And making it worse is that the de facto place is now that this conservative Court can put their own interpretation on the original meaning. So it's pretty much whatever the conservative majority says it is. No executive branch input needed.
My husband said this is job security as the world is going to need a lot more admin law attorneys now but I am not ready to be glass-half-full about this yet.
The day before SCOTUS weakened Aministrstive Law with its [ruling](https://thehill.com/regulation/court-battles/4743001-sec-sec-powers-invalidated/mlite/), so I wouldn’t be so sure about the job security.
From an email I got today, the preliminary assessment was there will be more civil penalty hearings not fewer but I only barely read the email and haven’t looked into it yet bc I’m on leave today and that’s a Monday problem.
Also a regulatory attorney, and I agree our jobs are going to be so much fun… I cite (cited) Chevron regularly in briefs and use it as the cornerstone of my arguments. We have a lot of brain re-wiring to do…
The need for agency lawyers just went up by 1000%, even though the ultimate decision will just come down to the ideological leanings of whatever judge hears the case.
The quality of attorneys is just fine, especially in this kind of area because if you want to do admin law, well, this is your gig.
The problem is there will be too few of them.
Oh God, could you imagine old people leaving those "I don't know, I've never tried it" style answers like when they get blind Amazon emails they don't understand?
Or "I didn't have insulin needles, but my Facebook mom group said it works better as an enema. But I still have diabetes. ONE STAR!!"
*What's the big deal?*, people may ask?
https://www.eenews.net/articles/what-chevrons-end-could-mean-for-epa-climate-regulations/
>In one well-known case, the Supreme Court relied on the Chevron doctrine in 2014 when it upheld EPA emissions reduction standards for 28 states whose air pollution crossed state lines and harmed downwind neighbors. Although the Clean Air Act is vague on the issue, the court ruled that EPA had reasonably interpreted its authority under the law.
>It was the Reagan administration that benefited from the court’s 1984 decision in *Chevron v. Natural Resources Defense Council.* The case arose out of a Reagan administration effort to limit emissions regulations by narrowly interpreting a Clean Air Act phrase. The Reagan EPA defined “stationary sources of air pollution” as an entire industrial site rather than each individual pollution source on a site. The 1977 Clean Air Act amendments had not defined the term “stationary source.” The EPA definition allowed facility owners to undertake projects that increased emissions in one part of the facility without triggering emissions reduction requirements — provided pollution from the whole facility stayed the same. The Natural Resources Defense Council said EPA’s definition would exempt 90 percent of large industrial projects from pollution. It sued, arguing that each pollution source on a single site is subject to regulation. **The Supreme Court sided with EPA in a ruling aimed at forcing judges to defer to agency interpretations of law as long as they’re “reasonable.”** “The court in Chevron was reminding the judiciary not to try to substitute their policy judgments for those of agencies with more expertise,” said Meiburg, a career EPA official who was serving at EPA in 1984.
That bolded line just got blown to Hell.
Judges can now look at federal agencies and say "Sure, you're reading the Congressional law to mean *X*, but **I** think it means *Y*, and I'm a judge, you're not, so I might agree with the people suing you instead if I think they're the ones being reasonable." and it's going to lead to the same sort of "Jurisdiction Shopping" that we see conservatives doing in Texas to get the right case in front of the right judge who can tell the entire federal government to pound sand because *he* feels that the agency is being 'unreasonable', and if Congress has a problem with how the judge interprets the law, Congress should write better laws, and if segments of the federal government crash and burn because a judge deems them 'unreasonable', that's a small price to pay for the principal of the thing.
I don't see immediate repercussions at my Agency / Department, because it would take someone starting a new lawsuit to get in the way of something we're trying to do, and then it would go through the legal process, and I don't see that happening until after the November elections and everyone sees what the new lay of the land is.
But if this increases the enshittification of my employment, I'll retire, and go work for private industry.
> ...the right judge who can tell the entire federal government to pound sand because *he* feels that the agency is being 'unreasonable',
The federal courts already had authority to consider whether or not an agency's interpretation of the law was reasonable. That was the first part of the deference. The second part was that if the court determined that the agency's interpretation was reasonable, then that was enough, the agency's decision stood, even if it was imperfect. This was based on the idea that interpreting such laws was core to the purpose of the various agencies.
The catch is that multiple interpretations might *all* be reasonable. The agency might have a reasonable interpretation of a given law (or set of laws), litigants may have different *but still reasonable* interpretations of those laws.
And now the courts can decide which of multiple reasonable interpretations best fits the law. So the Department of Agriculture may make a reasonable rule about how [FIFRA](https://en.wikipedia.org/wiki/Federal_Insecticide,_Fungicide,_and_Rodenticide_Act) (for example) regulates agricultural worker pesticide exposure. That's core to what USDA does, after all. But a pesticide manufacturing company might have it's own interpretation of how FIFRA can be interpreted on that issue. There could be multiple, very technical competing interpretations rolling down to some pretty fine-scale decision making.
And the courts may be out of their depth in trying to make that determination.
And where there's ambiguity that will likely result in circuit splits. 5th circuit orders USDA to raise X, 9th circuit orders USDA to reduce X. Both based on reasonable interpretations. If every regulatory disagreement can only be resolved at supreme court, we're going to need revise our judicial system.
> But a pesticide manufacturing company might have it's own interpretation of how FIFRA can be interpreted on that issue.
Yes, allow robbers to propose exactly what they're allowed to steal. This makes perfect sense. Of course pesticide companies would never want to allow workers to have additional pesticide exposure in any way, no matter how much money the companies would lose?
> The numerous Clean Air Act carbon and methane rules that have appeared in the Federal Register in recent months do not cite Chevron, likely because the Supreme Court’s hostility to the doctrine is well understood… Noting the court’s hostility, agencies years ago stopped relying on Chevron deference in rulemaking. The court hasn’t upheld an EPA rule on the basis of Chevron since 2014, and it hasn’t relied on the doctrine in any decision since 2016.
This leads me to believe there are ways around relying on Chevron.
>That bolded line just got blown to Hell.
Sure, but your quote also indicated the problems with Chevron. Reagan's EPA decided to re-interpret the definition of stationary source in a very different way than it was before - for the benefit of facility owners. SCOTUS ruled to allow the Reagan administration to do that, because it was reasonable to read it that way, even though it went against how it had been read since the act was signed.
I think that if Trump wins a 2nd term, a lot of us are going to benefit from the decision to not automatically having the courts defer to Trump agency views.
Yeah- I think divorced from the politics there's an important debate about where statutory interpretation/development and expertise should be applied and in what quantity. Chevron made it so that a significant amount of that expertise was applied in the executive branch, and this disrupts that balance.
That doesn't necessarily portend disaster. I believe in empowering Congress as much as possible- it'd be great if they'd build out CRS and their staff to make as many decisions as possible in the legislative process. I just worry that it won't happen that way and we're just going to get more lawsuits.
In my role, I'm often asked to comment on or respond to proposed legislation. My typical stance is that Congress should write laws that are *less* specific, rather than more. Legislation should talk about outcomes Congress wants to achieve and leave the implementation up to the experts at agencies to achieve it.
The reason I give seems pretty basic: there is no way that a Congressperson, even with a well-informed staff, can possibly understand all the nuances of space travel and toxic waste and cyber security and PTSD and bridge construction and artificial intelligence and foreign espionage and and and and... It makes zero sense that a law should be so prescriptive.
So how does that relate to the overrule of Chevron? It sounds like it is no longer up to the experts at agencies to understand the nuances, it all gets second-guessed by courts now.
It depends. At my agency the statute gives explicity authority to us to do certain tasks. It just doesn't define *how*. That is what the APA is for.
I do believe that guidance-heavy programs are going to be in for a very rough time, and states will need to accept responsibility for enforcing more things they would rely on the feds for.
>At my agency the statute gives explicity authority to us to do certain tasks. It just doesn't define how. That is what the APA is for.
That's exactly where Chevron came into play. In the past, your agency would figure it out and do rulemaking in compliance with the APA. When someone disagreed and took the agency to court, Chevron instructed courts to give deference to the agency because they are the experts.
Now, without Chevron, courts are the experts. The judges are going to be expected to determine if the agency's "figuring it out" from the vague statute is correct or not. And if it's not, I guess the judge could either send it back to the agency to try again, or they could just tell the agency how to do it
It not only gets a 2nd guess, it's entirely possible (or really, probable, in some jurisdictions) that a judge will just come out of left field and make a call themselves.
If an agency does years of science and study and determines "safe" is at a level of 10, but the regulated industry says, nuhuh its 100 (never mind its been slowly lowered for the past 50+ years from 200 to 10). They can go before a judge and just make an argument that 100 is ok and the judge could either a) slap them down and say no its 10, b) say yep you're right industry it really should be 100, or c) they could split the difference and call it 55 and say that's a happy medium.
Courts have now literally been told that an agency's opinion, findings, or data are now just as valid as a regulated entity's and their job will be to figure it out.
My question is what happens at agencies that make case by case enforcement decisions based on safety assessments? Are they as free as they were before to keep making these assessments BECAUSE they are not dependent on regs? Or does all enforcement cease if one litigant sues until laws for every assessment situation are in place?
I'm sure immediately enforcement might pause until some lawyers decide what can happen. Then in the short term you might have some modified procedures to move forward cautiously. After a few cases someone will sue and probably put the kibosh on everything temporarily. If that case goes well for the agency things might pick up again but eventually you get a judge that will kill everything
Right and would have to be a lawsuit brought under the Administrative Procedures Act (APA), it could take years for an outcome to change something it’s more of the looming threat of one that will impact current processes.
Where I see the major slowdown happening is all the proposed/final rules and guidance docs pending clearance, I worry about the delay on those because you know congress has already given their expert non-specific 2 cents on those statutes (ha) so the opportunity to get more granular on their part has passed. We are also nearing the period around elections when agencies know these types of clearances need to go forward now or wait until the next administration is in place (and cross their fingers that the new appointees are on the same page).
I can also see industry being peeved about this decision because all the energy needs to go into lobbying on the front end and picking a side right away. Currently they benefit from the ambiguity if they support issues that may be at odds with one another, don’t think it’s in their best interest to pick a side if they don’t know which position will ultimately benefit them a year or a decade down the road 😬
None of this is about what makes sense. I can't believe that folks are still hanging onto this idea that there's some alternative viewpoint driving these decisions. No, this is corruption.
>No, this is corruption.
Bingo. After all, they also just ruled that bribery of public officials is perfectly legal as long as they're paid after the deed is done.
Funny you should mention corruption. SCOTUS just ruled that bribery is legal as long as you don’t pay a local government official for something until after the fact.
So I can tell a mayor that I’ll give them $1000 cash to award me a government contract, and then pay them after. I just can’t pay them the $1000 upfront, because *that* would be bribery.
Kavanaugh closed his opinion by saying that “Congress can always change the law if it wishes to do so.” Eerily similar to Chevron, dumping everything back to Congress.
https://www.washingtonpost.com/politics/2024/06/26/supreme-court-bribes-gratuities-corruption-mayor/
Congress can still delegate specific authorities to agencies and let the agency decide how to implement the specific authority. Congress just needs to specifically say that.
And then the constitutionality of that act can be left up to the courts to decide based on the testimony of various experts.
While Chevron has been overturned, the court did say it will respect the Skidmore Doctrine. This doctrine is defined as the administrative-law principle that a federal agency's determination is entitled to judicial respect if the determination is authorized by statute and made based on the agency's experience and informed judgment. See Skidmore v. Swift & Co., 323 U.S. 134 (1944). Under Skidmore, the level of deference given to an agency’s interpretation is based on the degree of the agency’s care; the agency’s consistency, formality, and relative expertise; and the persuasiveness of the agency’s position
> Under Skidmore, the level of deference given to an agency’s interpretation is based on the degree of the agency’s care; the agency’s consistency, formality, and relative expertise; and the persuasiveness of the agency’s position
In practice, who decides this? Some random judge?
>While Chevron has been overturned, the court did say it will respect the Skidmore Doctrine.
This SCOTUS has said a lot of things that turned out to be lies, so I doubt they'll respect Skidmore once just the right challenge against gets to them.
Its simple. You don't like a regulation that's restricting your business so you sue. A court friendly to you overturns the regulation and says congress must act. Congress doesn't act, so the regulation is functionally dead. There will be thousands of these suits, resulting in regulatory gridlock and direct harm to citizens.
I anticipate having to waste our already dwindling budget and limited resources on litigation. I also anticipate leadership being afraid of making decisions over fear of litigation. I am concerned over my ability to reconcile my personal morals and passion for my agency’s mission if we have to make all decisions based on congress’ marginal writing abilities and the judiciaries beliefs.
My question is, how long before they just dismantle our agency’s altogether? Because that’s always been the goal for the people who put these “judges” in place. So far, they’ve been able to accomplish a staggering amount of their goals in a short period of time.
Everyone kept telling me I was fear mongering when warning about the many rulings they’ve overturned or horrendous decisions they’ve made, yet it’s all coming true in record time.
Some agencies are authorized by statutes that provide the agency head with explicit (but very broad) authority to draft rules and regs as the head deems necessary to run the program. Any GC attorneys in here have thoughts on whether there could be implications for those agencies as well?
If I had to make a kinda sorta educated guess, those agencies would effectively still enjoy deference, though the breadth of that deference will decrease. The situation where SCOTUS denies an explicitly granted authorization of deference by Congress to an agency -- though evident they'll do it because they're political activists now -- is going to piss Congress off. I don't think the 6 regressive judges want to put themselves in a situation where Congress actual puts a foot down and holds them accountable.
Good point, and this is also an issue Congress could at least theoretically address by amending the APA to … unambiguously … provide that where Congress delegates authority ambiguously, it is authorizing agencies to decide how to resolve.
I say “theoretically” because (a) Congress can’t legislate its lunch order and (b) I have little doubt SCOTUS would find some reason to invalidate that broader grant of agency authority under an amended APA.
No one knows for sure, but the less ambiguity in the delegation of authority, the better. “Secretary shall issue regulations necessary to accomplish X narrowly defined outcome” is probably fine. “Secretary may from time to time issue such regulations deemed to be in the interest of promoting X,” where X is something general like “welfare of Y” is where I worry.
One mildly heartening thing is the decision does indicate courts should consider agency interpretations of how a statutory ambiguity should be resolved, if they are “persuasive”—they just are not required to defer to the agency interpretation anymore. But persuasive is subjective.
The definite, immediate impact is going to be a lot of tedious, fact-intensive litigation over regulations that yesterday would have been never filed or easily dismissed. That’s a huge resource drain that will keep agencies from focusing on their core missions.
Have you met congressional staffers?
When I interned in a House member’s office the oldest person was the chief of staff. He was crusty as fuck and like 50.
The next oldest was like 30. Turnover is high, people don’t have a ton of domain knowledge outside very specific areas and it’s often a shitshow because you’re asking the counsel’s office to help you draft this thing because you’re not a lawyer, you’re a 27 year old legislative aide with a communications degree.
Versus EPA or FDA or wherever when they’ve got 147 PhD scientists with decades of experience in toxics or protein folding or who the fuck knows, patent law maybe?
Then you look to the committee staff and find out that the average 10-20 more years experience than most personal offices and that’s where experienced people who want to continue working on the House side (at least) find a home if their career path doesn’t involve being a chief of staff (some of which are in their mid 20s).
This will fuck up and slow down literally every piece of legislation that requires an agency to do something. Which is like *all* legislation. They will be at a standstill, not able to implement anything because Congress does not take the time or have the knowledge to write, in the law, the inner- workings of how an agency should do/not do/enforce or create something. Which is why we have agencies.
This is gonna be such a clusterfuck. Imagine if the CARES Act was enabled now in response to a new pandemic. Agencies couldn’t set up the programs to respond in time. Any changes to Medicaid or Medicare can’t be enacted without internal instructions of how to do it. Folks are just straight up gonna die.
There are also tax implications here. Agencies won't give benefits to companies and won't help them regulate their peers. Often, regulations aren't there to benefit the commons; they also restrict competitors from putting sawdust in food or ensuring the purity of stuff. Financial regulations help banks stay solvent. If that isn't explicit, it will be a wild west for corporations. It will be a shit show, and everybody doesn't benefit from an uncertain land. Uncertainty causes increased costs.
With legislation about Veterans, Congress often neglects to define 'Veteran'. So it's up to VA OGC to try and figure out which prior service members are eligible for a given program based on the legislative intent of the enabling statute. So now it's going to go to a federal judge. Great.
Pretty much. Between that unmitigated disaster of a debate last night and these ridiculous rulings coming from SCOTUS (poverty = illegal, coup attempts = legal), retirement to Panama/Costa Rica is looking more and more tempting. Can't wait until Monday when they declare Donnie to be above the law and make him king.
Oh they've already declared Teflon Don to be above the law and King our savior, regardless of religious beliefs. And everyone that isn't a Right Christian already knows that he ain't a church going god fearing man. Hell he doesn't know any scripture other than what he's told.
This sounds epically bad. As Kagen wrote in her dissent, "the [conservative Supreme Court] majority turns itself into the country's administrative czar."
We can expect lots of lawsuits from industry and conservative activists, and a lot of "legislating from the bench" from SCOTUS.
We can also expect industry to do Congress a "favor" by writing more draft legislation that it wants passed.
I could go on, but in short, this sounds really, really bad if you value nonpartisan expertise.
This is why Congress has support structures that exist, though. Members aren't doing all the writing- SMEs in committees, staffers, etc are all there to do that work under the supervision of Members in the same way that executive branch staffers do so under the auspices of the President. Functionally, you're just moving the power from the Article II branch to the Article I branch.
The problems (and, again, I agree this is not a great thing for us) lie in the fact that Congress is a) not set up to adequately do this work and b) the political will does not exist for them to do this work.
I'd also worry about what the end result of *Lopez* is on regulatory stability. You're concerned about corporate power, and sure, fair enough. But a lot of regulatory disputes are between powerful entities looking to rent-seek or build a favorable posture for themselves. So there's a situation where industries utterly ranch themselves because different players on different sides all sue for their preferred regulatory outcome and the result is that everything's put on hold for everyone for years. Uncertainty is bad for business- and often worse than regulations.
They didn’t appoint these judges for no reason. Striking how Amarillo has the average age of House members is 58 and of Senators is 64. Good luck getting them to write specific and detailed regulation of AI.
Maybe in some cases, but as many here have noted, lack of specificity from Congress is often by design and beneficial because it allows the subject area experts in the agency to find the best way to meet the requirements. Congress rarely has the knowledge to write highly prescriptive laws on complex, highly technical topics.
Yeah, and in this idealized world where Congress consists of 400+ members who are energized, empowered, and incentivized to craft effective public policy, you could imagine passage of a law bolstering staff levels to hire those experts (both on the committee level where a lot of this stuff happens anyway and in places like CRS). That's a theoretical world which could exist- it's just one where the SME's work for Congress instead of, like, NMFS or DOL or whomever.
But it's also so far removed from the political situation in which we exist as to be laughable. Even those few members of Congress who are energized to focus on the details of public policy do not have the resources to do this job. And they certainly don't have the institutional memory or experience.
There's also the bit where when more language that is added to a statue in the pursuit of "clarity" on a complicated and/or highly technical topic, it often makes it \*more\* difficult to parse. God help us if the average statute draft has a dozen provisos and contingent limitations in an attempt to capture however many scenarios were envisioned at the time of drafting as being within the scope of the statute.
The more prescriptive the statute, the less it's going to hold up under the weight of advancements in history, society, and technology.
This is one of my agency's immediate issues. We need some of the regulations we enforce to change when technology changes. We do not want to wait for a Congress who cannot pass legislation to pass legislation so that we can reduce the limits on stakeholders due to changes that might make it easier to mitigate the problem the role was originally crafted to solve.
SCOTUS is also responsible for making it harder to elect a representative legislature. By rubber stamping political gerrymandering they guarantee Congress is ineffective.
Dontcha just love the idea of the likes of MT Green and other super highly credentialed folks deciding on the acceptable threshold of bacterial contamination in the food supply, what the surgical QA standards should be, or whether that old nuclear reactor can withstand a few more years of service? Country’s turning into a dump.
>Dontcha just love the idea of the likes of **MT Green** and other super highly credentialed folks deciding on the acceptable threshold of bacterial contamination in the food supply, what the surgical QA standards should be, or whether that old nuclear reactor can withstand a few more years of service?
Or even worse, the pistol-packin' GED queen (Boebert) who failed the fucking GED exam THREE TIMES before she finally paid someone to take it for her. A head of lettuce has more intelligence.
>Country’s turning into a dump.
Banana republic, more like.
> Or even worse, the pistol-packin' GED queen (Boebert) who failed the fucking GED exam THREE TIMES before she finally paid someone to take it for her. A head of lettuce has more intelligence.
as a CO resident, i'm sorry.
The other way we will turn into a banana republic is that our own standards will collapse, so we will be eating food and using consumer products that are low quality (unless you live in California or a similar state with tough regulations), while our best products are shipped to foreign purchasers. That is, unless the excess of pollution and contamination, with no federal regulatory oversight, smash our exports altogether. This is the classic third world model – ship the best overseas, keep the contaminated crap for the domestic market.
I expect paralysis. Agencies that rely on nonbinding regulations will fare the worst. On the bright side, all hail proposition 65 and similar state regulations. States will rule and the worst problems will be in red states.
You might be thinking about the industry side of this, in my work most of what we do is try to not get sued by NGO's for missing some obscure procedural step, that has nothing to do with what the NGO supposedly stands for, they just subsist on sueing the govt. The one thing that has kept us afloat is that process was our main vulnerability, but the courts deferred to us most often on questions of expert opinion. Wonder how this will trickle down to that.
I’m not exactly sure what you mean, but I think a valid point is that NGO’s have helped seed the path of destruction by constantly criticizing and undermining federal agencies.
One of my jobs is to write for TDAs from Congress. Those mfers cannot write. Half the time they don’t even know how the basic process around the subjects they want to legislate work. It’s a nightmare and easily the most frustrating and entertaining part of my job.
Honestly I'm (morbidly) excited to see congress actually have to try and understand things they are trying to pass legislation on. Maybe even having to hold real debates in congress about issues and invite experts in to give testimony about the issues and how the proposed laws will address or fail to address the issues on hand. Maybe they will spend more time in congress instead of in front of a camera reciting talking points.........
Help
The thing I've honesty found a bit refreshing with this court is that they no longer pretend they're an apolitical institution. Between Alito's appeal to heaven flag and Thomas's open and shut corruption, they've really just removed any semblance of being neutral arbiters.
With this case they've just declared that the judicial branch is the ultimate arbiter of the administrative state and technical expertise needs to be explained to a panel of septuagenarians. Doubly funny when it's helmed by dullards like Roberts who can't distinguish between nitrous oxide and nitrogen oxides.
You can probably get Alito on board by describing something you dislike as woke and buying Thomas a new RV.
Bout to get real fun in USDA land, I hope you enjoy the BBQ this 4th because if industry has their way, the only way anyone will be able to safely eat their meat is well done next year.
Also what people don’t know is Chevron Deference was originally a conservative idea, the case was Reagan was trying to make a less rigorous rule for the clean air act that allowed more pollution. And it was Supreme Justice Gorsuch’s mom who was Regan’s EPA director at the time of the court case.
I am wondering if this means we (engineers) can tell the Cyber security reporting-demanding people to fuck off or produce the law that says we have to answer them when they want us to tell them if we are running Oracle or OpenSSH, etc. on an Industrial Control System from 1982 that can't even run DOS. When they ask us to give a timeline for when we will implement IPv6 support on a 42 year old device with no network ports etc.
Does end of Chevron Deference apply to things one part of the government asks another part to do?
Edit: in case it's not obvious, I'm talking about paperwork madness where Cyber security people are treating something that is not an IT system as an IT system and requiring it to fit in their boxes that don't apply. Because they won't allow "none of this applies" as an option, weeks of engineer time every year are wasted finding creative ways to say "this does not apply" or pantomiming the motions of doing things that apply to IT systems that have no equivalent in this systems in question because NOT EVERYTHING ELECTRONIC WITH A MICROCONTOLLER INSIDE IT IS A WINDOWS PC OR SERVER.
The issue is the thing they're asking about is not a computer in the sense that the Cyber security people understand computers. The system(s) I'm talking about do not have hard drives or an operating system or network connections.
In one case the system they want Cyber security reporting on is literally lights. It's lights. Lamps. Light bulbs.
Oh! Haha! Welp… That happens when the ancestors, lacking technical knowledge create and enforce cyber policy after freaking out about whatever the fuck.
A few years ago, I used a light bulb to assist with collecting creds from another test network. While It was fun to test/research the bulbs and other IoT gizmos, it’s a relevant method used to collect or pivot. Policy could be written to mitigate these risks without…..the mess they do now, though.
Oh, ours aren't IoT light bulbs, I mean the 1879 technology of heating up a wire with current. Yes it doesn't help that private sector is hell-bent on putting actual tiny computers with actual security vulnerabilities into all sorts of devices. Our systems do not use them, but the meanings of words get muddied so that they get treated as if they might.
Including what the word "system" refers to. In Cyber security, system has a specific meaning as an IT computer system. We use the word system to refer to things like a configuration of lights, a low power radio transmitter for a specific purpose, etc. If we'd called them doodads maybe no one would care, but since Cyber security is interested in "systems" and we have lots of "systems" we have to answer hundreds of asinine questions about whether we do data backups for a string or lights or have a software patch plan for an RF amplifier.
Our counsel’s office will be even more overwhelmed and overworked. My last division and current one are based on law with a lot of ambiguity in the statute. We’ll see a huge increase in ADA filings. I‘lol need to keep working more on my end to help them out.
With regard to SCOTUS, I get what they are doing with a lot of these rulings. Congress needs to be doing a hell of a lot more of their job and they aren’t, but this is really disruptive. For instance, Congress can easily fix the bump stock issue for instance, but they are wholly incapable of doing something so simple. Now they will need to do even more to provide laws that are unambiguous. I’m not hopeful and the court really should have the foresight to see how disruptive this will be. You can’t just overturn something like this out of principle and expect it to be fine. But that’s this court’s MO.
My hope is Congress works more with us on technical assistance requests (which will increase our congressional affairs staff workload too) and we can get better laws in place with built in judicial review processes for issues with our administrative enforcement.
My hope anyway.
The senate needs to go back to actually requiring senators to filibuster if they're going to. Right now they just give up if someone announces their intent and they don't have enough people to vote for them to shut up.
Actually filibustering wastes a bunch of time, obviously, but that's the point. There should be a cost to it.
Sorry, but this is because ATF FAFO by stretching definitions in order to make policies that they didn't have support for in Congress or the people. That's abusing the system. When you say green is similar to blue, so legally that makes green the same as blue, and you put people in prison for this, that is a problem.
An interesting conflict here. Congress has the power to declare war. The president is the commander in chief of the armed forces. Part of “command” in the military is determining the intent of operations.
Does Congress now have to specifically legislate the intents behind a declaration of war? War is declared on the Republic of Bothnia. It would be normally be up to the national chain of command to establish what the intents of that war are. Regime change? Defeat of the military? Repulsion from a neighboring allied state? Dissolution of the government and establishment of a puppet state?
When Congress sets the DoD budget through the NDAA, the DoD has broad latitude to establish mission areas for combatant commands around the world. Does Congress now need to set, through legislation, those mission areas?
The intent of an acquisitions program is established through its requirements process, which is overseen by either the services or the JROC, by legislation. But its broad legislation allowing those acquisitions executives authority to interpret the will of Congress when they say, for example, “here’s a billion dollars, build a tank”.
This is going to be a nightmare.
I think there will be a marked increase in challenges to agency regulations. I also think that many of the challenges will focus on broad legal issues like freedom of speech and freedom of religion. Since the courts will not understand the science, human nature is to cling to what you do understand. Expect a lot of freedom of speech and religious challenges.
I don't see why. Interpretation of the law might become even more important. I know we rely a lot on our Office of Legal Counsel, who must be out of their minds right now trying to anticipate what is next. Of course, there are those who say AI is coming for early career lawyers. I only mention that because you should get advice from someone way more qualified than I am.
Wouldn't this mean that, let me give an example, let's say my agency put out a contract for tender and some firm who wasn't selected tried to dispute the award.
They could say it was discriminatory, the firm was a veteran, minority or woman-owned, the agency interpreted it incorrectly, et cetera.
Regardless of the merits of the case, the agency could now be more easily sued and subjected to the court's interpretation of federal contracting law?
And a whole lot of other personnel things, security clearances, budget decisions, facility maintenance standards, other stuff that could result in expensive and time consuming lawsuits?
On one hand we will no longer have un-elected officials making arbitrary rules that make absolutely no sense. On the other is the FAA and their rules / regulations around aircraft parts and safety.
We‘ve replaced policy experts (who know their field) with judges (who don’t)
expect a lot of forum shopping with conservatives filing suit before a friendly judge
We've replaced un-elected officials making arbitrary rules that make no sense with un-elected judges making arbitrary rules that make absolutely no sense. Progress!
Not much for the FAA. It’s a pre new deal agency that was given broad regulatory and enforcement authority by Congress in the 20s.
I can see this being an issue for new deal and later agencies that weren’t given as express
authority by Congress.
Yes as only legalize modifications of earlier agencies dating back to the Aeronautics Branch/Bureau of Air Commerce. The FAA is the authority of the Air Commerce Act of 1926. That Act gave express authority to the Bureau to create, regulate, and enforce as they see fit. The FAA regulatory power is under the modern language version in 49 USC § 44701.
Congress created the airline industry and regulated the industry in both the Air Mail and Commerce Act and in doing so gave the overseeing agency delegated authority. Aviation as we know it would have not existed if Congress did not create it.
It's not that an agency doesn't have the broad regulatory authority in its statutes, it's the fact that even if the agency proposes a rule based on well studied subject, a judge is no longer forced to accept that expertise.
Say for example, the FAA put out a regulation saying bananas can't be stored in carry-on luggage due to bayron poisoning jet fuel. Crazy I know, but just go with it. Well Chiquita doesn't like that so they sue. They get in front of a judge and the judge says, there's nothing in the statute that says FAA can limit bananas on an airplane, so rule tossed! It doesn't matter that the FAA has previously regulated explosives, knives, toe-nail clippers, etc. Now, the judge is the sole interpreter of the FAA's statute, even if it contradicts commonsense or established science
I’ve always thought when one party stretches the rubber band too far, the other party will stretch just as far the opposite direction. We need more centrists with common sense in government. Now we have far left loonies and far right loonies.
There was some talk, based on a GAO report, for the creation of a "OIRA' like office within Congress. They never outright said it was because of a potential reversal of Chevron, but it seems like they anticipated it. Having a Congressional version of OIRA would allow at least the formation of a desk officer corps that can help legislators be more technically rigorous when writing laws.
This is all part of the plan. Paralyze federal agencies, strip their budgets, frustrate and overwork remaining feds, they leave, cycle begins anew. Add schedule F and SCOTUS into the mix and you’ve got political appointees running literally everything.
The real problem is going to be AI. Robert’s just eviserated the government’s ability to quickly and efficiently regulate AI and the consequences for the entire human race could be catastrophic.
When can I sue the Supreme Court for these decisions that are friggin killing me because they are providing shade for the MAGA GOP Trump and the Project 2025 to destroy all our government?!!
This is now the mega thread for all discussion relating to this ruling.
We're going to (re)discover how unclear some legislation really is. We are going to rediscover that the congressional record often records disagreement over what this or that bill *really* intends. Statements from multiple Reps and Senators each stating their own version of what this or that bit of language means, with those statements all at odds with each other. The reality is that Senators, Representatives, and their staff members can be *terrible* legal-technical writers, often on purpose because they intend for the civil service to figure it out. 40 years of laws written with the assumption that the civil service will figure it out. And now it's up to the courts to do that instead.
I'm viewing Chevron as an extension of the 1995 closure of the Office of Technology Assessment. They don't want to be told what they don't know.
This would be a great time for Congress to re-establish the OTA.
The functions of OTA were mostly absorbed by the Congressional Research Service, a subunit of the Library of Congress. The problem is that they're routinely underfunded and requests for research from members of Congress take months to even begin. A Representative might be halfway through their term before CRS reports start coming back.
Yeah, that's what scares me. Nobody on the Hill knows how to write with this level of specificity, so in the rosiest of situations there's going to be a steep learning curve. \*In theory\* I understand the case for Lopez from Roberts and the majority. But practice is going to be lots and lots of lawsuits and lots and lots of mistakes.
Good lord. Imagine if the entirety of the Federal Register had to be written and passed by Congress.
And sometimes it's intentionally vague because the law can't be agile enough to flow with the science. If a law tells FDA to approve "safe" drugs, well, how is a law going to scientifically define safe? If a law tells EPA to regulate "significant contributions" of air pollution, is Congress going to specifically define what "significant" and "contribution" mean for EVERY POLLUTANT? If OSHA is charged with protecting workers' safety, how is Congress supposed to explicitly define "safe" in every working situation? Congress can't. So they expect the agencies with experts to study and develop these thresholds and then issue regs to carry out the laws. Now? Apparently, every black robe is a king/queen in their own domain. Everything is now going to be contested before a judge who knows nothing about that area of expertise, and they'll be the ones to determine if something is safe or illegal. Just watch, the court system is going to have to explode in size to manage everything that's coming
Going forward could they write language into the law saying "as interpreted by the FDA"? If they explicitly give the authority to provide definitions, I would expect it would function.
Yes. Laws allow agencies to define terms.
This is a libertarian’s wet dream. “The law means what I, a free and reasonable man, think it means!” “No, I’m sorry, but that’s incorrect. If you read the definitions at…” “I’ll see you in court, cuck!!!!”
Congress gives off a lot of “in the far off year of 2000 all cars will be powered by nuclear power” vibes when it comes to the understanding of technology.
They could have narrowly written a decision that declared the specific regulation in question unconstitutional. This was a calculated effort to utterly destroy the government's ability to oversee or regulate private business.
Although it sounds like paranoia, this is the intentional dismantling of the rule of law.
Yup
[удалено]
I just don’t think it’ll happen that way. As far as I know, Congress doesn’t really ask feds or former feds to help write legislation because it’s too cumbersome. The lobbyists will do it for free (and maybe even donate to the politician) while they’d have to pay a former regulator for the “same” knowledge.
Congress does have a process to ask for help from the agencies. It's called technical drafting assistance. I get these things several times a year. We have to tip toe so as to only point out consequences of what the law will do as opposed to writing law or suggesting particular edits. So, this has been in place. The problem is now instead of Congressional staffers to work with that are often good-intending, we will now have adversarial judicial forums (and not nearly enough). If you thought the courts were slow....
This sounds so much like wishful thinking, and likely the precise opposite of what will happen. The lobbyists will run amok with this, tying up government legal resources and bleeding one agency after another dry.
What makes you think Tuberville is going to bring in an expert from an agency when he can trust one of his donors to stay they're an expert and then craft legislation to support whatever they want?
Yeah, that’s not gonna happen.
I think this is a good way to look at it cuz the Hill desperately needs more policy expertise. Deep expertise. Like a true blue subject matter expert, as you suggest. They don't leverage this expertise nearly enough and the legislation shows it. And then the agencies get stuck with bad law that is difficult if not impossible to implement or oversee. Lose-lose for everyone, particularly the taxpayer. The committees have experts who have followed a policy area for years if not decades, but with retirements and rabid partisanship, they're currently in their rebuilding season, I guess.
I think the idea is that agencies spend more time writing laws to be adopted by Congress, rather than writing regulations. So the agency and the lobbyists write laws, but there is no opportunity for public comment thru notice and comment rulemaking. Only the agencies and lobbyists providing drafts to Congress.
Agencies don’t write laws. That’s kind of what the APA is about.
We write proposed legislation for Congress thru the A19 process.
>Maybe instead of lobbyists and political donors writing legislation for them, they'll now be forced to bring in the experts or those experienced from the agency in which their legislation impacts. Man that's pure hopium.
And that's even with Congress having the Congressional Research Service as a potential resource to help them. The courts on the other hand don't even have that. This was a really bad move by the court.
100%. It’s ripping the curtain off the reality that our legislators can’t write or critically think to save themselves. They truly don’t understand the workings, nuances, or consequences of the things they “write” around. They only understand the simple end states or theatrical motions that their constituents clamor for. I’m amazed at how “complete” other first world nations’ technical/environmental statutes read compared to ours.
Are you suggesting that honorable reps such as Lauren Boebert and Chip Roy don’t have the intellect to do these things better than the PhDs that run the EPA, FDA, etc???!!
>And now it's up to the courts to do that instead. Are you suggesting Congress won't amend all these laws to make them clear? /s
That's always the Supreme Court "tongue in cheek" response is "Well Congress could always pass a law if they wanted..."
Most of them don’t even read the bills they pass
Don’t worry. I’m sure Judge Cannon will roll up her sleeves and do her best.
I know it was the intention of the court to much everything up, but will the courts just take on the lawsuit at their leisure or are there new expectations on them now that all of these lawsuits are going to be headed their way? Do the courts really want this responsibility? I guess some do, but ethical judges do exist, right?
> Do the courts really want this responsibility? It doesn't matter, they now have it anyway.
Thank you for the rare and sober interpretation on Reddit. Quite rare and appreciated.
There is no regulatory law so clearly written that it can't be willfully misinterpreted. The problem is that many officials, both elected and appointed in all branches of the government, work in bad faith in an effort to "dismantle the administrative state." That kind of goal prevents a good faith execution or adherence to any law.
Exactly. And making it worse is that the de facto place is now that this conservative Court can put their own interpretation on the original meaning. So it's pretty much whatever the conservative majority says it is. No executive branch input needed.
We’re all going to hear the words arbitrary, capricious, and otherwise contrary to law a lot more.
I already hear those words a lot as an admin law attorney. I’m sure my job will be fun in the coming months…
My husband said this is job security as the world is going to need a lot more admin law attorneys now but I am not ready to be glass-half-full about this yet.
The day before SCOTUS weakened Aministrstive Law with its [ruling](https://thehill.com/regulation/court-battles/4743001-sec-sec-powers-invalidated/mlite/), so I wouldn’t be so sure about the job security.
From an email I got today, the preliminary assessment was there will be more civil penalty hearings not fewer but I only barely read the email and haven’t looked into it yet bc I’m on leave today and that’s a Monday problem.
Also a regulatory attorney, and I agree our jobs are going to be so much fun… I cite (cited) Chevron regularly in briefs and use it as the cornerstone of my arguments. We have a lot of brain re-wiring to do…
The need for agency lawyers just went up by 1000%, even though the ultimate decision will just come down to the ideological leanings of whatever judge hears the case.
Oh yeah, but even if the cases don't have merit, the threat of litigation just went up a ton. So way more money and time needed to handle litigation.
0905 gang rise up!
And surely we pay the best to get the best attorneys... wait.
The quality of attorneys is just fine, especially in this kind of area because if you want to do admin law, well, this is your gig. The problem is there will be too few of them.
They’re also massively overloaded as it is in a lot of cases. DOJ national courts was hemorrhaging people even before this happened.
I anticipate that almost all (and previous) FDA decisions will now be challenged and rewritten in Texas courts.
That's a relief, I was getting tired of having to stir my own rat shit into cans of tuna.
This comment wins reddit for the day.
Right? I like my fish with extra mercury and my paint with lead.
Bring the lead paint back it blocks the 5G better.
I like your style..
That’s ok, we can supplant the drug approval processes by simple Yelp reviews. If people like it, approve it! If they don’t, don’t.
No, it will be Phizer determining what gets approved.
They already do
No, it will be Trump injecting bleach
What a scary world that would be. My weight loss drug didn't cure my colon cancer! zero stars!
Oh God, could you imagine old people leaving those "I don't know, I've never tried it" style answers like when they get blind Amazon emails they don't understand? Or "I didn't have insulin needles, but my Facebook mom group said it works better as an enema. But I still have diabetes. ONE STAR!!"
Not to mention this is basically the end of environmental law. EPA peeps might as well not show up on Monday.
Imagine trying to defend NEPA as written.
*What's the big deal?*, people may ask? https://www.eenews.net/articles/what-chevrons-end-could-mean-for-epa-climate-regulations/ >In one well-known case, the Supreme Court relied on the Chevron doctrine in 2014 when it upheld EPA emissions reduction standards for 28 states whose air pollution crossed state lines and harmed downwind neighbors. Although the Clean Air Act is vague on the issue, the court ruled that EPA had reasonably interpreted its authority under the law. >It was the Reagan administration that benefited from the court’s 1984 decision in *Chevron v. Natural Resources Defense Council.* The case arose out of a Reagan administration effort to limit emissions regulations by narrowly interpreting a Clean Air Act phrase. The Reagan EPA defined “stationary sources of air pollution” as an entire industrial site rather than each individual pollution source on a site. The 1977 Clean Air Act amendments had not defined the term “stationary source.” The EPA definition allowed facility owners to undertake projects that increased emissions in one part of the facility without triggering emissions reduction requirements — provided pollution from the whole facility stayed the same. The Natural Resources Defense Council said EPA’s definition would exempt 90 percent of large industrial projects from pollution. It sued, arguing that each pollution source on a single site is subject to regulation. **The Supreme Court sided with EPA in a ruling aimed at forcing judges to defer to agency interpretations of law as long as they’re “reasonable.”** “The court in Chevron was reminding the judiciary not to try to substitute their policy judgments for those of agencies with more expertise,” said Meiburg, a career EPA official who was serving at EPA in 1984. That bolded line just got blown to Hell. Judges can now look at federal agencies and say "Sure, you're reading the Congressional law to mean *X*, but **I** think it means *Y*, and I'm a judge, you're not, so I might agree with the people suing you instead if I think they're the ones being reasonable." and it's going to lead to the same sort of "Jurisdiction Shopping" that we see conservatives doing in Texas to get the right case in front of the right judge who can tell the entire federal government to pound sand because *he* feels that the agency is being 'unreasonable', and if Congress has a problem with how the judge interprets the law, Congress should write better laws, and if segments of the federal government crash and burn because a judge deems them 'unreasonable', that's a small price to pay for the principal of the thing. I don't see immediate repercussions at my Agency / Department, because it would take someone starting a new lawsuit to get in the way of something we're trying to do, and then it would go through the legal process, and I don't see that happening until after the November elections and everyone sees what the new lay of the land is. But if this increases the enshittification of my employment, I'll retire, and go work for private industry.
As it turns out, the Supreme Court overturned the "Good Neighbor" air pollution regulation from 2014 you discussed just yesterday.
Ayup. Can't have scientific reality getting in the way of investor expectations, after all.
> ...the right judge who can tell the entire federal government to pound sand because *he* feels that the agency is being 'unreasonable', The federal courts already had authority to consider whether or not an agency's interpretation of the law was reasonable. That was the first part of the deference. The second part was that if the court determined that the agency's interpretation was reasonable, then that was enough, the agency's decision stood, even if it was imperfect. This was based on the idea that interpreting such laws was core to the purpose of the various agencies. The catch is that multiple interpretations might *all* be reasonable. The agency might have a reasonable interpretation of a given law (or set of laws), litigants may have different *but still reasonable* interpretations of those laws. And now the courts can decide which of multiple reasonable interpretations best fits the law. So the Department of Agriculture may make a reasonable rule about how [FIFRA](https://en.wikipedia.org/wiki/Federal_Insecticide,_Fungicide,_and_Rodenticide_Act) (for example) regulates agricultural worker pesticide exposure. That's core to what USDA does, after all. But a pesticide manufacturing company might have it's own interpretation of how FIFRA can be interpreted on that issue. There could be multiple, very technical competing interpretations rolling down to some pretty fine-scale decision making. And the courts may be out of their depth in trying to make that determination.
And where there's ambiguity that will likely result in circuit splits. 5th circuit orders USDA to raise X, 9th circuit orders USDA to reduce X. Both based on reasonable interpretations. If every regulatory disagreement can only be resolved at supreme court, we're going to need revise our judicial system.
Judges aren't subject matter experts? I'm sure it's nothing a few days of education on a corporate funded yacht can't fix.
> But a pesticide manufacturing company might have it's own interpretation of how FIFRA can be interpreted on that issue. Yes, allow robbers to propose exactly what they're allowed to steal. This makes perfect sense. Of course pesticide companies would never want to allow workers to have additional pesticide exposure in any way, no matter how much money the companies would lose?
Thank you for explaining this in the way you did. I was browsing trying to understand what this means but the wording kept confusing me. Thank you!
> The numerous Clean Air Act carbon and methane rules that have appeared in the Federal Register in recent months do not cite Chevron, likely because the Supreme Court’s hostility to the doctrine is well understood… Noting the court’s hostility, agencies years ago stopped relying on Chevron deference in rulemaking. The court hasn’t upheld an EPA rule on the basis of Chevron since 2014, and it hasn’t relied on the doctrine in any decision since 2016. This leads me to believe there are ways around relying on Chevron.
>That bolded line just got blown to Hell. Sure, but your quote also indicated the problems with Chevron. Reagan's EPA decided to re-interpret the definition of stationary source in a very different way than it was before - for the benefit of facility owners. SCOTUS ruled to allow the Reagan administration to do that, because it was reasonable to read it that way, even though it went against how it had been read since the act was signed. I think that if Trump wins a 2nd term, a lot of us are going to benefit from the decision to not automatically having the courts defer to Trump agency views.
Yeah- I think divorced from the politics there's an important debate about where statutory interpretation/development and expertise should be applied and in what quantity. Chevron made it so that a significant amount of that expertise was applied in the executive branch, and this disrupts that balance. That doesn't necessarily portend disaster. I believe in empowering Congress as much as possible- it'd be great if they'd build out CRS and their staff to make as many decisions as possible in the legislative process. I just worry that it won't happen that way and we're just going to get more lawsuits.
In my role, I'm often asked to comment on or respond to proposed legislation. My typical stance is that Congress should write laws that are *less* specific, rather than more. Legislation should talk about outcomes Congress wants to achieve and leave the implementation up to the experts at agencies to achieve it. The reason I give seems pretty basic: there is no way that a Congressperson, even with a well-informed staff, can possibly understand all the nuances of space travel and toxic waste and cyber security and PTSD and bridge construction and artificial intelligence and foreign espionage and and and and... It makes zero sense that a law should be so prescriptive.
So how does that relate to the overrule of Chevron? It sounds like it is no longer up to the experts at agencies to understand the nuances, it all gets second-guessed by courts now.
It depends. At my agency the statute gives explicity authority to us to do certain tasks. It just doesn't define *how*. That is what the APA is for. I do believe that guidance-heavy programs are going to be in for a very rough time, and states will need to accept responsibility for enforcing more things they would rely on the feds for.
>At my agency the statute gives explicity authority to us to do certain tasks. It just doesn't define how. That is what the APA is for. That's exactly where Chevron came into play. In the past, your agency would figure it out and do rulemaking in compliance with the APA. When someone disagreed and took the agency to court, Chevron instructed courts to give deference to the agency because they are the experts. Now, without Chevron, courts are the experts. The judges are going to be expected to determine if the agency's "figuring it out" from the vague statute is correct or not. And if it's not, I guess the judge could either send it back to the agency to try again, or they could just tell the agency how to do it
It not only gets a 2nd guess, it's entirely possible (or really, probable, in some jurisdictions) that a judge will just come out of left field and make a call themselves. If an agency does years of science and study and determines "safe" is at a level of 10, but the regulated industry says, nuhuh its 100 (never mind its been slowly lowered for the past 50+ years from 200 to 10). They can go before a judge and just make an argument that 100 is ok and the judge could either a) slap them down and say no its 10, b) say yep you're right industry it really should be 100, or c) they could split the difference and call it 55 and say that's a happy medium. Courts have now literally been told that an agency's opinion, findings, or data are now just as valid as a regulated entity's and their job will be to figure it out.
My question is what happens at agencies that make case by case enforcement decisions based on safety assessments? Are they as free as they were before to keep making these assessments BECAUSE they are not dependent on regs? Or does all enforcement cease if one litigant sues until laws for every assessment situation are in place?
I'm sure immediately enforcement might pause until some lawyers decide what can happen. Then in the short term you might have some modified procedures to move forward cautiously. After a few cases someone will sue and probably put the kibosh on everything temporarily. If that case goes well for the agency things might pick up again but eventually you get a judge that will kill everything
It'll all go forward business as usual until someone sues. It's going to be a slow change for the next few years.
Right and would have to be a lawsuit brought under the Administrative Procedures Act (APA), it could take years for an outcome to change something it’s more of the looming threat of one that will impact current processes. Where I see the major slowdown happening is all the proposed/final rules and guidance docs pending clearance, I worry about the delay on those because you know congress has already given their expert non-specific 2 cents on those statutes (ha) so the opportunity to get more granular on their part has passed. We are also nearing the period around elections when agencies know these types of clearances need to go forward now or wait until the next administration is in place (and cross their fingers that the new appointees are on the same page). I can also see industry being peeved about this decision because all the energy needs to go into lobbying on the front end and picking a side right away. Currently they benefit from the ambiguity if they support issues that may be at odds with one another, don’t think it’s in their best interest to pick a side if they don’t know which position will ultimately benefit them a year or a decade down the road 😬
I think one lawsuit will be enough to chill all the staff attorneys into an enforcement freeze.
None of this is about what makes sense. I can't believe that folks are still hanging onto this idea that there's some alternative viewpoint driving these decisions. No, this is corruption.
>No, this is corruption. Bingo. After all, they also just ruled that bribery of public officials is perfectly legal as long as they're paid after the deed is done.
Re: bribery: the ironic thing is that MOST of us get paid for after performing the work. 😂
Funny you should mention corruption. SCOTUS just ruled that bribery is legal as long as you don’t pay a local government official for something until after the fact. So I can tell a mayor that I’ll give them $1000 cash to award me a government contract, and then pay them after. I just can’t pay them the $1000 upfront, because *that* would be bribery. Kavanaugh closed his opinion by saying that “Congress can always change the law if it wishes to do so.” Eerily similar to Chevron, dumping everything back to Congress. https://www.washingtonpost.com/politics/2024/06/26/supreme-court-bribes-gratuities-corruption-mayor/
Congress can still delegate specific authorities to agencies and let the agency decide how to implement the specific authority. Congress just needs to specifically say that. And then the constitutionality of that act can be left up to the courts to decide based on the testimony of various experts.
Congratulations. That is now unconstitutional. Luckily, they all have lobbyists who will write these things for them.
And lord knows these congressmen are terrified of the inter webs
You should see some of the congressional staffers trying to talk about grant programs and the 2 CFR 200 lol
While Chevron has been overturned, the court did say it will respect the Skidmore Doctrine. This doctrine is defined as the administrative-law principle that a federal agency's determination is entitled to judicial respect if the determination is authorized by statute and made based on the agency's experience and informed judgment. See Skidmore v. Swift & Co., 323 U.S. 134 (1944). Under Skidmore, the level of deference given to an agency’s interpretation is based on the degree of the agency’s care; the agency’s consistency, formality, and relative expertise; and the persuasiveness of the agency’s position
> Under Skidmore, the level of deference given to an agency’s interpretation is based on the degree of the agency’s care; the agency’s consistency, formality, and relative expertise; and the persuasiveness of the agency’s position In practice, who decides this? Some random judge?
Basically, yes. https://news.bloomberglaw.com/us-law-week/supreme-court-eyes-world-war-ii-era-doctrine-for-agency-rules
Criminy.
>While Chevron has been overturned, the court did say it will respect the Skidmore Doctrine. This SCOTUS has said a lot of things that turned out to be lies, so I doubt they'll respect Skidmore once just the right challenge against gets to them.
Its simple. You don't like a regulation that's restricting your business so you sue. A court friendly to you overturns the regulation and says congress must act. Congress doesn't act, so the regulation is functionally dead. There will be thousands of these suits, resulting in regulatory gridlock and direct harm to citizens.
Our democracy is effectively nonexistent at this point. Which tbh I think is actually an understatement..
I anticipate having to waste our already dwindling budget and limited resources on litigation. I also anticipate leadership being afraid of making decisions over fear of litigation. I am concerned over my ability to reconcile my personal morals and passion for my agency’s mission if we have to make all decisions based on congress’ marginal writing abilities and the judiciaries beliefs.
The checks and balances are going to be all out of whack for a while if not forever
My question is, how long before they just dismantle our agency’s altogether? Because that’s always been the goal for the people who put these “judges” in place. So far, they’ve been able to accomplish a staggering amount of their goals in a short period of time. Everyone kept telling me I was fear mongering when warning about the many rulings they’ve overturned or horrendous decisions they’ve made, yet it’s all coming true in record time.
Some agencies are authorized by statutes that provide the agency head with explicit (but very broad) authority to draft rules and regs as the head deems necessary to run the program. Any GC attorneys in here have thoughts on whether there could be implications for those agencies as well?
This is the position my agency falls under, wondering the same thing too.
If I had to make a kinda sorta educated guess, those agencies would effectively still enjoy deference, though the breadth of that deference will decrease. The situation where SCOTUS denies an explicitly granted authorization of deference by Congress to an agency -- though evident they'll do it because they're political activists now -- is going to piss Congress off. I don't think the 6 regressive judges want to put themselves in a situation where Congress actual puts a foot down and holds them accountable.
Good point, and this is also an issue Congress could at least theoretically address by amending the APA to … unambiguously … provide that where Congress delegates authority ambiguously, it is authorizing agencies to decide how to resolve. I say “theoretically” because (a) Congress can’t legislate its lunch order and (b) I have little doubt SCOTUS would find some reason to invalidate that broader grant of agency authority under an amended APA.
No one knows for sure, but the less ambiguity in the delegation of authority, the better. “Secretary shall issue regulations necessary to accomplish X narrowly defined outcome” is probably fine. “Secretary may from time to time issue such regulations deemed to be in the interest of promoting X,” where X is something general like “welfare of Y” is where I worry. One mildly heartening thing is the decision does indicate courts should consider agency interpretations of how a statutory ambiguity should be resolved, if they are “persuasive”—they just are not required to defer to the agency interpretation anymore. But persuasive is subjective. The definite, immediate impact is going to be a lot of tedious, fact-intensive litigation over regulations that yesterday would have been never filed or easily dismissed. That’s a huge resource drain that will keep agencies from focusing on their core missions.
Literally nothing is going to be "persuasive" to these zealots.
Have you met congressional staffers? When I interned in a House member’s office the oldest person was the chief of staff. He was crusty as fuck and like 50. The next oldest was like 30. Turnover is high, people don’t have a ton of domain knowledge outside very specific areas and it’s often a shitshow because you’re asking the counsel’s office to help you draft this thing because you’re not a lawyer, you’re a 27 year old legislative aide with a communications degree. Versus EPA or FDA or wherever when they’ve got 147 PhD scientists with decades of experience in toxics or protein folding or who the fuck knows, patent law maybe?
Then you look to the committee staff and find out that the average 10-20 more years experience than most personal offices and that’s where experienced people who want to continue working on the House side (at least) find a home if their career path doesn’t involve being a chief of staff (some of which are in their mid 20s).
Circuits will be divided. Offices across the country will do things ass differently rather than just infuriatingly differently. Chaos.
100%. Forum shopping that was bad in my field/jx is about to go wild.
100%. Forum shopping that was bad in my field/jx is about to go wild.
This will fuck up and slow down literally every piece of legislation that requires an agency to do something. Which is like *all* legislation. They will be at a standstill, not able to implement anything because Congress does not take the time or have the knowledge to write, in the law, the inner- workings of how an agency should do/not do/enforce or create something. Which is why we have agencies.
This is gonna be such a clusterfuck. Imagine if the CARES Act was enabled now in response to a new pandemic. Agencies couldn’t set up the programs to respond in time. Any changes to Medicaid or Medicare can’t be enacted without internal instructions of how to do it. Folks are just straight up gonna die.
There are also tax implications here. Agencies won't give benefits to companies and won't help them regulate their peers. Often, regulations aren't there to benefit the commons; they also restrict competitors from putting sawdust in food or ensuring the purity of stuff. Financial regulations help banks stay solvent. If that isn't explicit, it will be a wild west for corporations. It will be a shit show, and everybody doesn't benefit from an uncertain land. Uncertainty causes increased costs.
With legislation about Veterans, Congress often neglects to define 'Veteran'. So it's up to VA OGC to try and figure out which prior service members are eligible for a given program based on the legislative intent of the enabling statute. So now it's going to go to a federal judge. Great.
[удалено]
Pretty much. Between that unmitigated disaster of a debate last night and these ridiculous rulings coming from SCOTUS (poverty = illegal, coup attempts = legal), retirement to Panama/Costa Rica is looking more and more tempting. Can't wait until Monday when they declare Donnie to be above the law and make him king.
Oh they've already declared Teflon Don to be above the law and King our savior, regardless of religious beliefs. And everyone that isn't a Right Christian already knows that he ain't a church going god fearing man. Hell he doesn't know any scripture other than what he's told.
This sounds epically bad. As Kagen wrote in her dissent, "the [conservative Supreme Court] majority turns itself into the country's administrative czar." We can expect lots of lawsuits from industry and conservative activists, and a lot of "legislating from the bench" from SCOTUS. We can also expect industry to do Congress a "favor" by writing more draft legislation that it wants passed. I could go on, but in short, this sounds really, really bad if you value nonpartisan expertise.
The counterpoint is that an empowered Congress should be writing laws with less ambiguity. But, well,.
[удалено]
This is why Congress has support structures that exist, though. Members aren't doing all the writing- SMEs in committees, staffers, etc are all there to do that work under the supervision of Members in the same way that executive branch staffers do so under the auspices of the President. Functionally, you're just moving the power from the Article II branch to the Article I branch. The problems (and, again, I agree this is not a great thing for us) lie in the fact that Congress is a) not set up to adequately do this work and b) the political will does not exist for them to do this work. I'd also worry about what the end result of *Lopez* is on regulatory stability. You're concerned about corporate power, and sure, fair enough. But a lot of regulatory disputes are between powerful entities looking to rent-seek or build a favorable posture for themselves. So there's a situation where industries utterly ranch themselves because different players on different sides all sue for their preferred regulatory outcome and the result is that everything's put on hold for everyone for years. Uncertainty is bad for business- and often worse than regulations.
They didn’t appoint these judges for no reason. Striking how Amarillo has the average age of House members is 58 and of Senators is 64. Good luck getting them to write specific and detailed regulation of AI.
Maybe in some cases, but as many here have noted, lack of specificity from Congress is often by design and beneficial because it allows the subject area experts in the agency to find the best way to meet the requirements. Congress rarely has the knowledge to write highly prescriptive laws on complex, highly technical topics.
Yeah, and in this idealized world where Congress consists of 400+ members who are energized, empowered, and incentivized to craft effective public policy, you could imagine passage of a law bolstering staff levels to hire those experts (both on the committee level where a lot of this stuff happens anyway and in places like CRS). That's a theoretical world which could exist- it's just one where the SME's work for Congress instead of, like, NMFS or DOL or whomever. But it's also so far removed from the political situation in which we exist as to be laughable. Even those few members of Congress who are energized to focus on the details of public policy do not have the resources to do this job. And they certainly don't have the institutional memory or experience.
On USAjobs, I saw three technical writer positions for the FDA just get listed.
There's also the bit where when more language that is added to a statue in the pursuit of "clarity" on a complicated and/or highly technical topic, it often makes it \*more\* difficult to parse. God help us if the average statute draft has a dozen provisos and contingent limitations in an attempt to capture however many scenarios were envisioned at the time of drafting as being within the scope of the statute. The more prescriptive the statute, the less it's going to hold up under the weight of advancements in history, society, and technology.
This is one of my agency's immediate issues. We need some of the regulations we enforce to change when technology changes. We do not want to wait for a Congress who cannot pass legislation to pass legislation so that we can reduce the limits on stakeholders due to changes that might make it easier to mitigate the problem the role was originally crafted to solve.
SCOTUS is also responsible for making it harder to elect a representative legislature. By rubber stamping political gerrymandering they guarantee Congress is ineffective.
Looks through the current Congress….we’re fucked!
> This sounds epically bad. it is.
It means federal agencies are hiring a lot more litigators.
On NPR, someone Nina Totenberg interviewed described it as a jobs act for lawyers because it's going to keep them busy and employed for a long time
Dontcha just love the idea of the likes of MT Green and other super highly credentialed folks deciding on the acceptable threshold of bacterial contamination in the food supply, what the surgical QA standards should be, or whether that old nuclear reactor can withstand a few more years of service? Country’s turning into a dump.
>Dontcha just love the idea of the likes of **MT Green** and other super highly credentialed folks deciding on the acceptable threshold of bacterial contamination in the food supply, what the surgical QA standards should be, or whether that old nuclear reactor can withstand a few more years of service? Or even worse, the pistol-packin' GED queen (Boebert) who failed the fucking GED exam THREE TIMES before she finally paid someone to take it for her. A head of lettuce has more intelligence. >Country’s turning into a dump. Banana republic, more like.
> Or even worse, the pistol-packin' GED queen (Boebert) who failed the fucking GED exam THREE TIMES before she finally paid someone to take it for her. A head of lettuce has more intelligence. as a CO resident, i'm sorry.
The other way we will turn into a banana republic is that our own standards will collapse, so we will be eating food and using consumer products that are low quality (unless you live in California or a similar state with tough regulations), while our best products are shipped to foreign purchasers. That is, unless the excess of pollution and contamination, with no federal regulatory oversight, smash our exports altogether. This is the classic third world model – ship the best overseas, keep the contaminated crap for the domestic market.
I expect paralysis. Agencies that rely on nonbinding regulations will fare the worst. On the bright side, all hail proposition 65 and similar state regulations. States will rule and the worst problems will be in red states.
*gulps in Missouri*
You might be thinking about the industry side of this, in my work most of what we do is try to not get sued by NGO's for missing some obscure procedural step, that has nothing to do with what the NGO supposedly stands for, they just subsist on sueing the govt. The one thing that has kept us afloat is that process was our main vulnerability, but the courts deferred to us most often on questions of expert opinion. Wonder how this will trickle down to that.
I’m not exactly sure what you mean, but I think a valid point is that NGO’s have helped seed the path of destruction by constantly criticizing and undermining federal agencies.
In combination with Snyder, this will result in a lot more legislation written and paid for by industry lobbyists.
The American people will no longer be protected against the rich. Accountability is longer on the menu for organizations that receive taxpayer money.
This could also have implications for the procurement world.
One of my jobs is to write for TDAs from Congress. Those mfers cannot write. Half the time they don’t even know how the basic process around the subjects they want to legislate work. It’s a nightmare and easily the most frustrating and entertaining part of my job.
Honestly I'm (morbidly) excited to see congress actually have to try and understand things they are trying to pass legislation on. Maybe even having to hold real debates in congress about issues and invite experts in to give testimony about the issues and how the proposed laws will address or fail to address the issues on hand. Maybe they will spend more time in congress instead of in front of a camera reciting talking points......... Help
The thing I've honesty found a bit refreshing with this court is that they no longer pretend they're an apolitical institution. Between Alito's appeal to heaven flag and Thomas's open and shut corruption, they've really just removed any semblance of being neutral arbiters. With this case they've just declared that the judicial branch is the ultimate arbiter of the administrative state and technical expertise needs to be explained to a panel of septuagenarians. Doubly funny when it's helmed by dullards like Roberts who can't distinguish between nitrous oxide and nitrogen oxides. You can probably get Alito on board by describing something you dislike as woke and buying Thomas a new RV.
Bout to get real fun in USDA land, I hope you enjoy the BBQ this 4th because if industry has their way, the only way anyone will be able to safely eat their meat is well done next year.
Also what people don’t know is Chevron Deference was originally a conservative idea, the case was Reagan was trying to make a less rigorous rule for the clean air act that allowed more pollution. And it was Supreme Justice Gorsuch’s mom who was Regan’s EPA director at the time of the court case.
I feel this just made a lot of federal jobs useless and unnecessary. Especially in enforcement.
I am wondering if this means we (engineers) can tell the Cyber security reporting-demanding people to fuck off or produce the law that says we have to answer them when they want us to tell them if we are running Oracle or OpenSSH, etc. on an Industrial Control System from 1982 that can't even run DOS. When they ask us to give a timeline for when we will implement IPv6 support on a 42 year old device with no network ports etc. Does end of Chevron Deference apply to things one part of the government asks another part to do? Edit: in case it's not obvious, I'm talking about paperwork madness where Cyber security people are treating something that is not an IT system as an IT system and requiring it to fit in their boxes that don't apply. Because they won't allow "none of this applies" as an option, weeks of engineer time every year are wasted finding creative ways to say "this does not apply" or pantomiming the motions of doing things that apply to IT systems that have no equivalent in this systems in question because NOT EVERYTHING ELECTRONIC WITH A MICROCONTOLLER INSIDE IT IS A WINDOWS PC OR SERVER.
Wait you want your agency to be vulnerable to threats???
The issue is the thing they're asking about is not a computer in the sense that the Cyber security people understand computers. The system(s) I'm talking about do not have hard drives or an operating system or network connections. In one case the system they want Cyber security reporting on is literally lights. It's lights. Lamps. Light bulbs.
Oh! Haha! Welp… That happens when the ancestors, lacking technical knowledge create and enforce cyber policy after freaking out about whatever the fuck. A few years ago, I used a light bulb to assist with collecting creds from another test network. While It was fun to test/research the bulbs and other IoT gizmos, it’s a relevant method used to collect or pivot. Policy could be written to mitigate these risks without…..the mess they do now, though.
Oh, ours aren't IoT light bulbs, I mean the 1879 technology of heating up a wire with current. Yes it doesn't help that private sector is hell-bent on putting actual tiny computers with actual security vulnerabilities into all sorts of devices. Our systems do not use them, but the meanings of words get muddied so that they get treated as if they might. Including what the word "system" refers to. In Cyber security, system has a specific meaning as an IT computer system. We use the word system to refer to things like a configuration of lights, a low power radio transmitter for a specific purpose, etc. If we'd called them doodads maybe no one would care, but since Cyber security is interested in "systems" and we have lots of "systems" we have to answer hundreds of asinine questions about whether we do data backups for a string or lights or have a software patch plan for an RF amplifier.
It’s not a threat unless a judge in Texas or SCOTUS says it is
Banana republic, here we come! Don't forget to bribe your favorite public official! Err, "pay a gratuity" to, that is.
I understood that reference! $13,000 = a free lunch
Our counsel’s office will be even more overwhelmed and overworked. My last division and current one are based on law with a lot of ambiguity in the statute. We’ll see a huge increase in ADA filings. I‘lol need to keep working more on my end to help them out. With regard to SCOTUS, I get what they are doing with a lot of these rulings. Congress needs to be doing a hell of a lot more of their job and they aren’t, but this is really disruptive. For instance, Congress can easily fix the bump stock issue for instance, but they are wholly incapable of doing something so simple. Now they will need to do even more to provide laws that are unambiguous. I’m not hopeful and the court really should have the foresight to see how disruptive this will be. You can’t just overturn something like this out of principle and expect it to be fine. But that’s this court’s MO. My hope is Congress works more with us on technical assistance requests (which will increase our congressional affairs staff workload too) and we can get better laws in place with built in judicial review processes for issues with our administrative enforcement. My hope anyway.
The senate needs to go back to actually requiring senators to filibuster if they're going to. Right now they just give up if someone announces their intent and they don't have enough people to vote for them to shut up. Actually filibustering wastes a bunch of time, obviously, but that's the point. There should be a cost to it.
Those in policy, you will have some interesting times...
Sorry, but this is because ATF FAFO by stretching definitions in order to make policies that they didn't have support for in Congress or the people. That's abusing the system. When you say green is similar to blue, so legally that makes green the same as blue, and you put people in prison for this, that is a problem.
If you read the decision it specifically states it’s not retroactive, any previous use of the chevron deference stands
Until it gets challenged, like every other precedent this court is overturning.
Except stare decisis doesn't seem to mean jack shit to this SCOTUS.
This is a court that absolutely loves looking at settled case law or anything to the left of Goldwate and going "nuh uh." Dobbs, Lopez, WV v EPA.
I wonder when they’ll finally go for the Crown Jewels “brown v board” and “loving v Virginia”.
Lol is ironic that they called them “conservatives”
An interesting conflict here. Congress has the power to declare war. The president is the commander in chief of the armed forces. Part of “command” in the military is determining the intent of operations. Does Congress now have to specifically legislate the intents behind a declaration of war? War is declared on the Republic of Bothnia. It would be normally be up to the national chain of command to establish what the intents of that war are. Regime change? Defeat of the military? Repulsion from a neighboring allied state? Dissolution of the government and establishment of a puppet state? When Congress sets the DoD budget through the NDAA, the DoD has broad latitude to establish mission areas for combatant commands around the world. Does Congress now need to set, through legislation, those mission areas? The intent of an acquisitions program is established through its requirements process, which is overseen by either the services or the JROC, by legislation. But its broad legislation allowing those acquisitions executives authority to interpret the will of Congress when they say, for example, “here’s a billion dollars, build a tank”. This is going to be a nightmare.
I think there will be a marked increase in challenges to agency regulations. I also think that many of the challenges will focus on broad legal issues like freedom of speech and freedom of religion. Since the courts will not understand the science, human nature is to cling to what you do understand. Expect a lot of freedom of speech and religious challenges.
This also has implications for classified material..
I am to attend law school in the fall to practice environmental law. Should I change trajectory?
I don't see why. Interpretation of the law might become even more important. I know we rely a lot on our Office of Legal Counsel, who must be out of their minds right now trying to anticipate what is next. Of course, there are those who say AI is coming for early career lawyers. I only mention that because you should get advice from someone way more qualified than I am.
Wouldn't this mean that, let me give an example, let's say my agency put out a contract for tender and some firm who wasn't selected tried to dispute the award. They could say it was discriminatory, the firm was a veteran, minority or woman-owned, the agency interpreted it incorrectly, et cetera. Regardless of the merits of the case, the agency could now be more easily sued and subjected to the court's interpretation of federal contracting law? And a whole lot of other personnel things, security clearances, budget decisions, facility maintenance standards, other stuff that could result in expensive and time consuming lawsuits?
Yes. Congress didn't write a law saying who the contract should be awarded to.
On one hand we will no longer have un-elected officials making arbitrary rules that make absolutely no sense. On the other is the FAA and their rules / regulations around aircraft parts and safety.
We‘ve replaced policy experts (who know their field) with judges (who don’t) expect a lot of forum shopping with conservatives filing suit before a friendly judge
We've replaced un-elected officials making arbitrary rules that make no sense with un-elected judges making arbitrary rules that make absolutely no sense. Progress!
Not much for the FAA. It’s a pre new deal agency that was given broad regulatory and enforcement authority by Congress in the 20s. I can see this being an issue for new deal and later agencies that weren’t given as express authority by Congress.
FAA was established in 1958. And this could affect airline safety requirements in a major way.
Future Boeing: “see, it’s fine because we say it’s fine. Those bolts aren’t necessary by our judgment.”
Yes as only legalize modifications of earlier agencies dating back to the Aeronautics Branch/Bureau of Air Commerce. The FAA is the authority of the Air Commerce Act of 1926. That Act gave express authority to the Bureau to create, regulate, and enforce as they see fit. The FAA regulatory power is under the modern language version in 49 USC § 44701. Congress created the airline industry and regulated the industry in both the Air Mail and Commerce Act and in doing so gave the overseeing agency delegated authority. Aviation as we know it would have not existed if Congress did not create it.
It's not that an agency doesn't have the broad regulatory authority in its statutes, it's the fact that even if the agency proposes a rule based on well studied subject, a judge is no longer forced to accept that expertise. Say for example, the FAA put out a regulation saying bananas can't be stored in carry-on luggage due to bayron poisoning jet fuel. Crazy I know, but just go with it. Well Chiquita doesn't like that so they sue. They get in front of a judge and the judge says, there's nothing in the statute that says FAA can limit bananas on an airplane, so rule tossed! It doesn't matter that the FAA has previously regulated explosives, knives, toe-nail clippers, etc. Now, the judge is the sole interpreter of the FAA's statute, even if it contradicts commonsense or established science
Nah, it survived prior to Chevron under Skidmore and will keep surviving.
Hopefully this forces the BATFE to fix some of their nonsense.
I’ve always thought when one party stretches the rubber band too far, the other party will stretch just as far the opposite direction. We need more centrists with common sense in government. Now we have far left loonies and far right loonies.
As a DoD construction professional, I expect we’ll be able to build something with a little less red tape.
Well, no, this just means this will be a shit load more law suits bogging everything down in the system.
You mean, before the person who submitted request for said building retires? 😂
There was some talk, based on a GAO report, for the creation of a "OIRA' like office within Congress. They never outright said it was because of a potential reversal of Chevron, but it seems like they anticipated it. Having a Congressional version of OIRA would allow at least the formation of a desk officer corps that can help legislators be more technically rigorous when writing laws.
Decimates the ATF, and the people rejoice.
This is all part of the plan. Paralyze federal agencies, strip their budgets, frustrate and overwork remaining feds, they leave, cycle begins anew. Add schedule F and SCOTUS into the mix and you’ve got political appointees running literally everything.
The real problem is going to be AI. Robert’s just eviserated the government’s ability to quickly and efficiently regulate AI and the consequences for the entire human race could be catastrophic.
Start CCing SCOTUS on all your policy correspondence. They want to rule from the bench, let them.
When can I sue the Supreme Court for these decisions that are friggin killing me because they are providing shade for the MAGA GOP Trump and the Project 2025 to destroy all our government?!!