The Beginning of the End for Chevron Deference?

[ll74]

The cases right now before SCOTUS could completely gut the government's ability to regulate.

(Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce)

And behind the curtain is a group who has been working to strategically put cases before the highest court like this.

https://www.theguardian.com/us-news/2023/oct/26/charles-koch-us-government-rightwing-supreme-court

Footage of an internal panel discussion between senior operatives from Koch entities held in the summer of 2022 reveals that the network has been quietly planning the current assault on the “administrative state”. The groups are seeking to exploit the supreme court’s new six-to-three rightwing majority secured by Donald Trump to dismantle vital executive powers.

 

[ll74]

An argument against Chevron deference is apparently that Congress can't Congress because of it -> https://www.lexology.com/library/detail.aspx?g=e66cddf5-bd23-411e-b3e1-1d627a9e707c

 

[ll74]

I find it interesting that conservatives of the court seem to be leaning towards giving more.policy making ability to the courts.

https://www.nbcnews.com/politics/su...ative-plea-weaken-federal-agencies-rcna133561

Liberal justices strongly defended the status quo, with Justice Elena Kagan giving practical examples of when it might be better for courts to defer to an agency's expertise, such as whether a cholesterol-lowering product should be classified as a dietary supplement or a drug.

"Sometimes law runs out. Sometimes there’s a gap. Sometimes there’s a genuine ambiguity," she said.

Justice Ketanji Brown Jackson, another liberal, made a similar point, saying Chevron helps "courts stay away from policymaking."

https://www.scotusblog.com/2024/01/supreme-court-likely-to-discard-chevron/

Justice Sonia Sotomayor agreed with Kagan. She doubted whether there can be a “best” interpretation of a law when the justices “routinely disagree” about a law’s meaning. The real question, she said, is who makes the choice about what an ambiguous law means. And if the court needs a “tie-breaker,” she continued, why shouldn’t it defer to the agency, with its expertise?

 

[bijedi]

An argument against Chevron deference is apparently that Congress can't Congress because of it -> https://www.lexology.com/library/detail.aspx?g=e66cddf5-bd23-411e-b3e1-1d627a9e707c

It's an interesting argument. But even if you agree with it, it is unlikely ending Chevron deference now would change that. Policy making in the absence of Chevron is more likely to shift even more to the courts and into the hands of jurists than it is to shift back to the legislature and into the hands of lawmakers.

 

[ll74]

It's an interesting argument. But even if you agree with it, it is unlikely ending Chevron deference now would change that. Policy making in the absence of Chevron is more likely to shift even more to the courts and into the hands of jurists than it is to shift back to the legislature and into the hands of lawmakers.

IMO, The problem with the legislators isnt the Chevron deference makes them unable to legislate. Truly legislators rely on agencies to refine ambiguous legislation....if legislators want to tighten that up, they just need to refine their language so there's no room for interpretation and therefore no need to agencies to be involved on that front

 

[Bn2f]

This appears to be long a pet peeve of Gorsuch and, from my reading, a selling point in trump selecting him for the court. And Thomas, shockingly, feels that his previous support was in error.
I don’t know if the votes exist to uphold and, I’m of the feeling that this will benefit corporations rather than motivate and empower congress to write clarifying legislation.

 

[ll74]

This appears to be long a pet peeve of Gorsuch and, from my reading, a selling point in trump selecting him for the court. And Thomas, shockingly, feels that his previous support was in error.
I don’t know if the votes exist to uphold and, I’m of the feeling that this will benefit corporations rather than motivate and empower congress to write clarifying legislation.

It will likely result in a bottleneck of regulation all waiting on court decisions, which will certainly benefit business bottom line.

 

[BabyBoomer50s]

It will be a real shame if the evil Koch clan facilitates a SCOTUS ruling that forces Congress to write laws that are explicit enough to limit the interpretive power of unelected bureaucrats.

 

[ll74]

It will be a real shame if the evil Koch clan facilitates a SCOTUS ruling that forces Congress to write laws that are explicit enough to limit the interpretive power of unelected bureaucrats.

That almost seems like a comment about the case.

 

[BrightShinyGirl]

It will be a real shame if the evil Koch clan facilitates a SCOTUS ruling that forces Congress to write laws that are explicit enough to limit the interpretive power of unelected bureaucrats.

Congress can’t be an expert on everything. If the SCOTUS eliminates Chevron deference, the result will be more legislation written by big corporations.

 

[BabyBoomer50s]

Congress can’t be an expert on everything. If the SCOTUS eliminates Chevron deference, the result will be more legislation written by big corporations.

Chevron deference conflicts with the Constitution which vests judicial power with the courts. It also conflicts with the Administrative Procedure Act of 1946, which provides that a “reviewing court shall decide all relevant questions of law” and “interpret constitutional and statutory provisions.” When regulatory ambiguities are challenged in court, Chevron deference commits the courts to tip the scale in favor of the government’s position over the plaintiff’s position.

Chevron deference was not controversial in the early days, but that began to change in the 90s when the executive branches of both parties and politically motivated agency heads increasingly used it as a tool to bypass the legislative process and diminish the authority of Congress.

The prospect of achieving a major policy win through executive action is much easier and faster than slogging through the sausage making legislative process. That’s a big reason why we see such dramatic changes in regulatory interpretation of laws related to things like climate change, student loan forgiveness, immigration, insurance, and education each time there’s a change presidential administrations.

I doubt SCOTUS will issue a binary decision that completely and unequivocally strips agencies of interpretive powers, but I do expect a significant re-balancing that scales it back and returns more responsibility to Congress.

 

[ll74]

Chevron deference conflicts with the Constitution which vests judicial power with the courts. It also conflicts with the Administrative Procedure Act of 1946, which provides that a “reviewing court shall decide all relevant questions of law” and “interpret constitutional and statutory provisions.” When regulatory ambiguities are challenged in court, Chevron deference commits the courts to tip the scale in favor of the government’s position over the plaintiff’s position.

Chevron deference was not controversial in the early days, but that began to change in the 90s when the executive branches of both parties and politically motivated agency heads increasingly used it as a tool to bypass the legislative process and diminish the authority of Congress.

The prospect of achieving a major policy win through executive action is much easier and faster than slogging through the sausage making legislative process. That’s a big reason why we see such dramatic changes in regulatory interpretation of laws related to things like climate change, student loan forgiveness, immigration, insurance, and education each time there’s a change presidential administrations.

That's why it is more efficient and smart to push decisions to an agency that is built to handle the decisions. Either the legislative branch will grow to bring those experts in more or the judicial branch will be backlogged with regulatory decisions and will ultimately be engaged on more policy making.

Neither would be preferential for our economy and countrym

 

[BrightShinyGirl]

Chevron deference conflicts with the Constitution which vests judicial power with the courts. It also conflicts with the Administrative Procedure Act of 1946, which provides that a “reviewing court shall decide all relevant questions of law” and “interpret constitutional and statutory provisions.” When regulatory ambiguities are challenged in court, Chevron deference commits the courts to tip the scale in favor of the government’s position over the plaintiff’s position.

Chevron deference was not controversial in the early days, but that began to change in the 90s when the executive branches of both parties and politically motivated agency heads increasingly used it as a tool to bypass the legislative process and diminish the authority of Congress.

The prospect of achieving a major policy win through executive action is much easier and faster than slogging through the sausage making legislative process. That’s a big reason why we see such dramatic changes in regulatory interpretation of laws related to things like climate change, student loan forgiveness, immigration, insurance, and education each time there’s a change presidential administrations.

I doubt SCOTUS will issue a binary decision that completely and unequivocally strips agencies of interpretive powers, but I do expect a significant re-balancing that scales it back and returns more responsibility to Congress.

If Congress wants to pass tighter laws to prevent executive meddling, nothing in the Chevron deference ruling prevents that. The goal in overturning it is to allow corporations to provide lax laws for unwitting politicians to pass.

 

[BabyBoomer50s]

If Congress wants to pass tighter laws to prevent executive meddling, nothing in the Chevron deference ruling prevents that. The goal in overturning it is to allow corporations to provide lax laws for unwitting politicians to pass.

And by reigning in deference to bureaucrats, Congress will have to pass more specific legislation that presidents and agencies are bound by.

 

[ll74]

And by reigning in deference to bureaucrats, Congress will have to pass more specific legislation that presidents and agencies are bound by.

And since they won't do that, because they don't have the expertise, everything will go to the courts. I'm sure our current backlog of cases and backlog of judge nominees will all work to make that a tremendous success

If you think the agencies aren't doing their job, then get better people into the agencies.

 

[Paul_Chance]

The Chevron Deference has only been around since 1984. Changing it, either by limiting it's application or by removing it all together, simply pushes the responsibility for clarity in legislation back into the two places it belongs - Congress and the Courts.

Agency experts will simply continue to be Agency experts, they'll just be called on more often by Congress to assist in writing legislation, and the Courts to provide their technical area of expertise opinions. And maybe, shudder to contemplate it, Congress will get their shit together and write good laws without ambiguity and with clear and actionable language.

The administrative state, like all bureaucracies, is primarily interested in self-preservation. That is in the nature of bureaucracies. Even if the Chevron Deference is overturned they'll still remain massive and powerful bureaucracies.

 

[Bn2f]

The Chevron Deference has only been around since 1984. Changing it, either by limiting it's application or by removing it all together, simply pushes the responsibility for clarity in legislation back into the two places it belongs - Congress and the Courts.

Agency experts will simply continue to be Agency experts, they'll just be called on more often by Congress to assist in writing legislation, and the Courts to provide their technical area of expertise opinions. And maybe, shudder to contemplate it, Congress will get their shit together and write good laws without ambiguity and with clear and actionable language.

The administrative state, like all bureaucracies, is primarily interested in self-preservation. That is in the nature of bureaucracies. Even if the Chevron Deference is overturned they'll still remain massive and powerful bureaucracies.

No one has argued that it is perfect.
Judges of all stripes have argued for more clarity depending on the cases brought before them. SCOTUS is not offering a solution here no more than they did when they decided on abortion by overturning Roe. As silly as this example is - I rather like that the FDA determined what ketchup is…

https://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfcfr/cfrsearch.cfm?fr=155.194

…rather than a politician somewhere.

There’s going to be an outcome with consequences for this and, as of now, it would appear to be to the detriment of the general public while favoring big monied interests.

 

[ll74]

The Chevron Deference has only been around since 1984. Changing it, either by limiting it's application or by removing it all together, simply pushes the responsibility for clarity in legislation back into the two places it belongs - Congress and the Courts.

Agency experts will simply continue to be Agency experts, they'll just be called on more often by Congress to assist in writing legislation, and the Courts to provide their technical area of expertise opinions. And maybe, shudder to contemplate it, Congress will get their shit together and write good laws without ambiguity and with clear and actionable language.

The administrative state, like all bureaucracies, is primarily interested in self-preservation. That is in the nature of bureaucracies. Even if the Chevron Deference is overturned they'll still remain massive and powerful bureaucracies.

That's half a century, give or take. Systems have been built around it.

Here's the question I have- if agencies were built to solve a problem, then what problem will it create by removing them? Is there a compromise that address the current issue?

I'm getting fairly sick of the answer of "burn it to the ground" if it doesn't work.Especially when so many actually sabotage these systems on purpose.

 

[Bn2f]

HIRONO INTRODUCES LEGISLATION TO COMBAT JUDGE SHOPPING AND STRENGTHEN INTEGRITY OF FEDERAL COURTS

https://www.hirono.senate.gov/news/...ng-and-strengthen-integrity-of-federal-courts

US judicial panel to examine 'judge shopping' reforms​

https://www.reuters.com/legal/gover...el-examine-judge-shopping-reforms-2023-10-17/



It’s important when you have SCOTUS sending out bat signals from the bench.

In Roe decision, Justice Clarence Thomas invites new legal challenges to contraception and same-sex marriage rights​

https://www.texastribune.org/2022/06/24/roe-wade-clarence-thomas-contraception-same-sex-marriage/

 

[JohnnySavage]

Charlies on Friday. Smokehouse on Saturday. Hudson's on Sunday. Watsui for Breakfast on Monday. Colder than a bear's ass.

 

[Paul_Chance]

That's half a century, give or take. Systems have been built around it.

Here's the question I have- if agencies were built to solve a problem, then what problem will it create by removing them? Is there a compromise that address the current issue?

I'm getting fairly sick of the answer of "burn it to the ground" if it doesn't work.Especially when so many actually sabotage these systems on purpose.

In answer to your specific question: The Agencies themselves are under no threat from any changes implemented that alter the Chevron Deference. The Agencies will remain. All the Deference does is require administrative law judges to defer to the Agency when the enabling legislation is ambiguous or unclear.

Under the Deference in Congress passes an unclear or ambiguous law and the relevant agency moves to act on the law, and the law contains an ambiguity or lacks clarity, the first course of action is to challenge the law in administrative court. The Deference effectively removed discretion from that first line of judiciary. The administrative courts are part of the very agency. By law, plaintiffs are required to go through them. The Deference essentially tied their hands and set up a bureaucratic system that where the administrative law judges could not countermand their own agencies interpretation of the law.

A full removal of the Chevron Deference would simply return the agencies to the pre-1984 status quo when the administrative courts could rule against their own agencies attempts to implement laws.

Under the Chevron Deference the administrative court judges are compelled to side with the agencies, even when they think the agency is wrong. This then means that for the plaintiff's, their first line of redress is the appellate courts, which they could only apply to once the Agencies administrative court process (which can take years) was exhausted.

The compromise available to the court is the one always available - they can rule up or down on the specific cases before them, without setting precedence, leaving the current Deference in place for other cases.

It's doubtful they'll take that route because, at one time or another, all nine justices, in published opinions on other cases, either concurring or dissenting, have discussing removing or re-doing the deference. There is an appetite in the court, and not just on one side or the other, to change the Chevron Deference.

 

[ll74]

In answer to your specific question: The Agencies themselves are under no threat from any changes implemented that alter the Chevron Deference. The Agencies will remain. All the Deference does is require administrative law judges to defer to the Agency when the enabling legislation is ambiguous or unclear.

Under the Deference in Congress passes an unclear or ambiguous law and the relevant agency moves to act on the law, and the law contains an ambiguity or lacks clarity, the first course of action is to challenge the law in administrative court. The Deference effectively removed discretion from that first line of judiciary. The administrative courts are part of the very agency. By law, plaintiffs are required to go through them. The Deference essentially tied their hands and set up a bureaucratic system that where the administrative law judges could not countermand their own agencies interpretation of the law.

A full removal of the Chevron Deference would simply return the agencies to the pre-1984 status quo when the administrative courts could rule against their own agencies attempts to implement laws.

Under the Chevron Deference the administrative court judges are compelled to side with the agencies, even when they think the agency is wrong. This then means that for the plaintiff's, their first line of redress is the appellate courts, which they could only apply to once the Agencies administrative court process (which can take years) was exhausted.

The compromise available to the court is the one always available - they can rule up or down on the specific cases before them, without setting precedence, leaving the current Deference in place for other cases.

It's doubtful they'll take that route because, at one time or another, all nine justices, in published opinions on other cases, either concurring or dissenting, have discussing removing or re-doing the deference. There is an appetite in the court, and not just on one side or the other, to change the Chevron Deference.

If deference is removed, then the power of the agencies is effectively neutered in most cases when the law is ambiguous.

 

[BabyBoomer50s]

In answer to your specific question: The Agencies themselves are under no threat from any changes implemented that alter the Chevron Deference. The Agencies will remain. All the Deference does is require administrative law judges to defer to the Agency when the enabling legislation is ambiguous or unclear.

Under the Deference in Congress passes an unclear or ambiguous law and the relevant agency moves to act on the law, and the law contains an ambiguity or lacks clarity, the first course of action is to challenge the law in administrative court. The Deference effectively removed discretion from that first line of judiciary. The administrative courts are part of the very agency. By law, plaintiffs are required to go through them. The Deference essentially tied their hands and set up a bureaucratic system that where the administrative law judges could not countermand their own agencies interpretation of the law.

A full removal of the Chevron Deference would simply return the agencies to the pre-1984 status quo when the administrative courts could rule against their own agencies attempts to implement laws.

Under the Chevron Deference the administrative court judges are compelled to side with the agencies, even when they think the agency is wrong. This then means that for the plaintiff's, their first line of redress is the appellate courts, which they could only apply to once the Agencies administrative court process (which can take years) was exhausted.

The compromise available to the court is the one always available - they can rule up or down on the specific cases before them, without setting precedence, leaving the current Deference in place for other cases.

It's doubtful they'll take that route because, at one time or another, all nine justices, in published opinions on other cases, either concurring or dissenting, have discussing removing or re-doing the deference. There is an appetite in the court, and not just on one side or the other, to change the Chevron Deference.

Great post. I would add that SCOTUS has already been moving away from the Chevron deference. It hasn’t been applied since 2016. And 13 states have rejected the concept.

 

[BabyBoomer50s]

If deference is removed, then the power of the agencies is effectively neutered in most cases when the law is ambiguous.

If levels the playing field. Horrors!

 

[Paul_Chance]

If deference is removed, then the power of the agencies is effectively neutered in most cases when the law is ambiguous.

Not at all. In the cases where the law is clear and unambiguous there is no change at all to the agencies.

In the cases where the law is unclear and ambiguous, the first interpretation is still done by the agency. The agency bureaucracy still says, "we think this is what Congress meant". In cases where that is not challenged, that's the end of it.

In someone challenges the interpretation, the plaintiffs still must challenge it through the established process, to an administrative law court. The plaintiffs make their argument. The Agency makes its argument. The administrative court makes it's decisions. If it's an uncontroversial or easily interpreted law, the administrative court sides with the agency.

The only change would happen when a controversial interpretation is challenged, if the administrative law judge decides it is not easily interpreted or the agency is wrong, then they find for the plaintiff and the particular law or regulation - goes back to the Agency to try again. If the Agency can't come up with an interpretation that passes muster in their own administrative law system, then the Agency can go to Congress and request a clarification.