Subject: Re: Big USSC case: the Chevron Deference
Dope1: However, increasingly we see alphabet agencies getting out over their skis in terms of their rulemaking power - the ATF and pistol braces, the EPA with puddles in your backyard, etc.


Why is that "getting out over their skis" (other than the fact that you don't agree with those decisions)? Aren't they doing exactly what Congress asked them to do?

Quoting justice Antonin Scalia: In my view, the theoretical justification for Chevron is no different from the theoretical justification for those pre-Chevron cases that sometimes deferred to agency legal determinations. As the D.C. Circuit, quoting the First Circuit, expressed it: 'The extent to which courts should defer to agency interpretations of law is ultimately a function of Congressional intent on the subject as revealed in the particular statutory scheme at issue.

And quoting justice Stevens: Judges are not experts in the field, and are not part of either political branch of the Government. Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges' personal policy preferences. In contrast, an agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration's views of wise policy to inform its judgments. While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices - resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities.