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Not much chatter about this. I find it very scary. If scouts reverses Chevron, not only will we be at the mercy of corporations, but thing we take for granted (like consumer safety) will go away. It also puts judges in the position to be deciders in areas in which they have no expertise, which justice Stevens said in his opinion in 1984. Even Scalia agreed with the decision.

An analysis of the implications:

https://www.nytimes.com/2024/01/17/us/politics/sup...

“If Chevron disappears,” said Jody Freeman, a Harvard University law professor who specializes in administrative and environmental law, it could become “a free-for-all for judges to dig into the nitty-gritty of everything agencies are doing” and “an invitation for interest-group lawyers to try to tie up the agencies in legal knots.”

If scotus reverse Chevron...

I hate autocorrect on my phone...

If the US Supreme Court reverses the Chevron precedent, it will be in complete denial of the nature of ANY modern industrialized democracy. It is IMPOSSIBLE to funnel EVERY rule-making decision related to a larger direction set forth in a law back through a legistlative process. Claiming that concepts of administrative law and rule-making are violations of the people's sovereignty and amount to an unconstititutional vesting of power in unelected officials is Federalist Society hyperbole providing cover for the goal of elimiminating all meaningful protections of worker safety, environmental protection, financial protection and basic civil rights provided by a government managing the affairs of hundreds of millions of citizens.

Do the people advocating such an extreme position seriously think we will revert to some idyllic democratic fantasyland theme park (Disney's House of Burgesses?) where every micro-decision will be decided in a small open-window hall on a hot sunny afternoon in 1700s Virginia by a bunch of MEN walking around in short pants, white whigs and tri-corner hats? No, they want to toss out as many regulations as possible and paralyze the legistlative branch's ability to reinstate ANY of them.

In a rational world, there is ZERO excuse for such a case getting heard in the USSC. The fact that it IS getting heard confirms the court has previously signalled it is EAGER to find excuses / rationales for gutting much if not all of these controls made possible by this precedent. They clearly have no regard for precedent so the danger of a catastrophically flawed ruling seems to be WAY above fifty percent.


WTH

IF the Chevron doctrine is overturned, then the actual laws as written have to be followed as the federal agencies will no longer be allowed to make things up on the fly.

https://jamesmadison.org/waters-of-the-united-stat...

The rule is so broad and vague that federal regulators will be licensed to micromanage property owners who are far away from genuinely navigable waters such as rivers, lakes or the ocean. This move threatens to unleash a flood of federal regulations over people’s land and their lives, from one end of the continent to the other.

The agencies contend that the new rule explains existing regulations. But, in fact, it expands regulations by completely redefining the scope of federal authority under the Act. The Corps and EPA claim to have found authority under the CWA to regulate virtually all waters, and apparently dry land, in the United States. With absurdly few exceptions, nearly any wet area may now be subject to federal control.

They clearly have no regard for precedent so the danger of a catastrophically flawed ruling seems to be WAY above fifty percent.

I'm hoping for something mild, less radical.

It is IMPOSSIBLE to funnel EVERY rule-making decision related to a larger direction set forth in a law back through a legistlative process. Claiming that concepts of administrative law and rule-making are violations of the people's sovereignty and amount to an unconstititutional vesting of power in unelected officials is Federalist Society hyperbole providing cover for the goal of elimiminating all meaningful protections of worker safety, environmental protection, financial protection and basic civil rights provided by a government managing the affairs of hundreds of millions of citizens.

To clarify, Chevron (and thus the case that might lead to it being limited or overruled) deals with a different issue than the one described above.

There are two separate (though related) issues SCOTUS has been dealing with in their recent jurisprudence. The first deals with the permissibility and scope of Congressional delegation to agencies - how much power has been delegated to agencies by Congress (the major questions doctrine) and the extent to which Congress may delegate power to agencies (the unconstitutional delegation doctrine). The second is the Chevron issue - whether the agencies are presumed to be correct when they make interpretations on various issues, or whether the courts approach it the way they would any other dispute between parties over the meaning of a statute.

Overturning Chevron will not directly affect the former issue. It will not hold that administrative law and rule-making are unconstitutional. It would, however, make it so that in litigation over disputed provisions of federal statutes, the agency's interpretation doesn't have any presumption of correctness. So agencies will still be able to issue rules and form administrative law - but the courts won't give them any deference in how they interpret the statutes that form the basis of those rules and administrative law.

Now, this likely will have an effect on the scope of administrative law anyway - which is one way the issues are related. Most directly, one of the areas that is frequently a subject of dispute between agencies and private parties is just how much power Congress has delegated. Presumably, agencies are more likely to lean towards thinking the statutes give them broader powers - so freeing courts to disagree with their read of the statute will likely narrow their power. And of course, if it's harder for agencies to win in court on the substance of their rules, not only will more rules get overturned, but the agencies may be more circumspect in issuing them in the first place.

But this is not a case where the legitimacy of delegation or administrative law generally is at issue.

Overturning Chevron will not directly affect the former issue. It will not hold that administrative law and rule-making are unconstitutional. It would, however, make it so that in litigation over disputed provisions of federal statutes, the agency's interpretation doesn't have any presumption of correctness. So agencies will still be able to issue rules and form administrative law - but the courts won't give them any deference in how they interpret the statutes that form the basis of those rules and administrative law. - Albaby

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Seems like overturning or revising Chevron somehow is a good thing. It moves the needle towards congress making laws with more specificity and precision rather the passing high level goals and leaving it to the unaccountable deep state bureaucrats to flesh out.

Congress will have to consider the consequences and details of the implementation of their oh so very good ideas. More details from congress = enhanced accountability to voters. More details from Congress = less room for partisan deep state bureaucrats to inject personal politics into the regulations they force on the rest of us.

<<Dope1
IF the Chevron doctrine is overturned, then the actual laws as written have to be followed as the federal agencies will no longer be allowed to make things up on the fly.>>

What this country needs is a whole army of off the rails agencies fully staffed by Asperger syndrome autism Greta Thudberg geniuses to really make the world beautiful. Clean the place up, once and for all.

The money that the entire planet is blowing world wide on wild eyed nonsense would make one's head spin.

It's like millions of Don Quixote's*** on steroids at work.

(***Of course, they'd have to eschew the attacks on windmills; windmills are CORE to the finest example in the bigger picture!)

BMH:rather the passing high level goals and leaving it to the unaccountable deep state bureaucrats to flesh out.

You need to come back to earth some. The farther out you go, the less air there is.

Congress will have to consider the consequences and details of the implementation

Congress doesn't **have** to do a thing, they can continue on, continuing on.

In a rational world, there is ZERO excuse for such a case getting heard in the USSC. The fact that it IS getting heard confirms the court has previously signalled it is EAGER to find excuses / rationales for gutting much if not all of these controls made possible by this precedent. They clearly have no regard for precedent so the danger of a catastrophically flawed ruling seems to be WAY above fifty percent.

Well...the Federalist Society, Koch Bros and others have paid a fortune for this SCOTUS and they expect to get a decent return on their investment. Oligarchy...here we come.

Seems like overturning or revising Chevron somehow is a good thing. It moves the needle towards congress making laws with more specificity and precision rather the passing high level goals and leaving it to the unaccountable deep state bureaucrats to flesh out.

Again, I think this also conflates the anti-delegation doctrine cases with the Chevron issue.

Overturning Chevron doesn't require Congress to provide more specificity or precision in their statutes. They're perfectly free to continue passing high level goals and allowing the agencies to flesh out the details, no matter what happens with Chevron. It would simply mean that when a statute is vague, the agency's read of the statute doesn't get any deference in a dispute.

<<Congress will have to consider the consequences and details of the implementation<<

Congress doesn't **have** to do a thing, they can continue on, continuing on. - Lapsody

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True. They have a well earned reputation for kicking the can down the road. They don't really have the time to get into the details of proposed legislation anyway since there are so many junkets, investigations, and fund raising activities to attend to.

>>True. They have a well earned reputation for kicking the can down the road. They don't really have the time to get into the details of proposed legislation anyway since there are so many junkets, investigations, and fund raising activities to attend to. <<

How could I have missed their two biggest demands on their time.... recesses and vacations.

BMH:rather the passing high level goals and leaving it to the unaccountable deep state bureaucrats to flesh out.
You need to come back to earth some. The farther out you go, the less air there is.

It's interesting to see cultist terms like 'woke' and 'deep state' increasingly included in a person's posts.


....and sorry to highjack the Chevron thread, but I just noticed a disclaimer on the Merriam-Webster website as I searched 'woke.'

"These examples are programmatically compiled from various online sources to illustrate current usage of the word 'cultist.' Any opinions expressed in the examples do not represent those of Merriam-Webster or its editors. Send us feedback about these examples."

No longer does a dictionary search give the traditional meaning of a word based on its etymology, so woke is no longer defined as the opposite of asleep. The first entry reflects the most common usage as determined by an algorithm? Kinda Orwellian.

"chiefly US slang
1a : aware of and actively attentive to important societal facts and issues (especially issues of racial and social justice).

Overturning Chevron doesn't require Congress to provide more specificity or precision in their statutes. They're perfectly free to continue passing high level goals and allowing the agencies to flesh out the details, no matter what happens with Chevron. It would simply mean that when a statute is vague, the agency's read of the statute doesn't get any deference in a dispute. - albaby

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Sure. My hope would be that without the Chevron thumb on the scale, the regulatory agencies would be more careful and responsive to citizen input knowing they may be forced in court to provide actual supporting evidence for what appears in their regulations.

bighairymike: ...regulatory agencies would be more careful and responsive to citizen input...

Citizen input? On extremely technical legislation? Like 5G cell towers and windmills cause cancer?


bighairymike: ...knowing they may be forced in court to provide actual supporting evidence for what appears in their regulations.

Congress gives federal agencies the power to make policy choices for good reason: legislators are not technical experts and will never be able to write laws with specific technical details.

If Chevron is overturned and agencies no longer have that power, then who will make policy decisions? The courts. And as Sotomayor pointed out during questioning, since justices “routinely disagree” about a law’s meaning the courts will find it impossible to agree on a “best” interpretation of a law.

Yet courts will have to make those kinds of policy decisions anyway. Or tell legislators to rewrite the law, which they cannot do because they're not technical experts.

A variation of Catch-22.

Overturning Chevron will not directly affect the former issue. It will not hold that administrative law and rule-making are unconstitutional. It would, however, make it so that in litigation over disputed provisions of federal statutes, the agency's interpretation doesn't have any presumption of correctness. So agencies will still be able to issue rules and form administrative law - but the courts won't give them any deference in how they interpret the statutes that form the basis of those rules and administrative law.

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In the practical world, this is a distinction without a difference.

Let's look at one area of contention, environmental regulation.

Congress passed a law creating the EPA to implement rules for maintaining safe drinking water and air throughout the country. Congress lacked (and still lacks) the TIME and the EXPERTISE to keep pace with evolving science around issues such as lead levels, the presence of plastic nanoparticles, etc. so they leave it to the EPA to adjust rules over time in reaction to evolving science.

One approach taken by giant corporations affected by those EPA rules to combat them is to argue the EPA has no authority to set acceptable limits and that Congress must enact and a President must approve any legislation regulating their business, cuz, you know, FREEDOM. If THIS rationale is held up by the USSC, any new lesson from science about harmful elements found in water would have to be uniquely addressed in new legislation wrangled through a bitterly divided Congress bought and sold by giant corporations, making it VASTLY more difficult to react to evolving science. Sounds pretty extreme, right?

If instead, the USSC intervenes and "clarifies" that Congress ABSOLUTELY has the right to delegate the creation of a rule governing the presence of lead or nanoplastics in water to an agency like the EPA but that agency enjoys zero assumption of being correct in any specific rule established, that simply moves the logjam from the House and Senate to hundreds of courtrooms across all 50 states, producing more chaos as different courts rule differently, generating MORE costs as firms attempt to track and comply with different rulings as they inevitably file lawsuits to reject said rulings. This is effectively saying "Congress has the right to delegate a rule-making authority to an agency but the agency only gets to define a formula y = ax^2 + bx + c but the agency will stil have to fight to set every constant in that formula. That's an infinite amount of variation that can be contested ad nauseum by corporations with billions of dollars at stake and billions they're willing to spend to fight any change.

Okay, as an alternate mental exercise, let's assume a USSC ruling expands / "clarifies" the authority delegated to agencies and says agencies absolutely have the right to designate a DIRECTION of change in a regulated process or substance. For example, Congress not only has the authority to set rules on lead levels, they also have the authority to state that lead levels must go down. Doesn't that take the infinite amount of variation that can trigger lawsuits and at least cut it in half?

No. Because half of infninity is still infinity and if an agency is given no assumption of correctness, corporations can not only argue that a specific LEVEL is arbitrary and capricious without justification, they can also file lawsuits objecting to the MEANS by which the level is measured, arguing the sampling process is inaccurate, subject to partisan interpretation, etc.

The difference between outright delegation of rule-making authority and a "narrower", "more conservative" limit on the presumption of correctness is an intellectal fig leaf the radical conservatives on the Court hand-picked by oligarchs under the guise of the Federalist Society are using to disguise their true intent -- the complete elimination of the mechanisms required in a modern democracy to protect the citizenry from the abuses of economic power held by giant corporations controlling a highly industrialized, high-tech economy.


WTH

If instead, the USSC intervenes and "clarifies" that Congress ABSOLUTELY has the right to delegate the creation of a rule governing the presence of lead or nanoplastics in water to an agency like the EPA but that agency enjoys zero assumption of being correct in any specific rule established, that simply moves the logjam from the House and Senate to hundreds of courtrooms across all 50 states, producing more chaos as different courts rule differently, generating MORE costs as firms attempt to track and comply with different rulings as they inevitably file lawsuits to reject said rulings.

I'm not sure that would be much of a change in terms of process. Invariably, any material change to regulations by an agency like EPA results in considerable litigation. And private parties fight over what statutes mean all the time as well, with neither party enjoying any kind of presumption of correctness. Litigation happens, conflicts in different circuits occur, etc. - but judges are always interpreting statutes, even very technical ones. One argument that's been levied against Chevron is that it hasn't materially reduced the amount of conflict and litigiousness around administrative rules.

Because half of infinity is still infinity and if an agency is given no assumption of correctness, corporations can not only argue that a specific LEVEL is arbitrary and capricious without justification, they can also file lawsuits objecting to the MEANS by which the level is measured, arguing the sampling process is inaccurate, subject to partisan interpretation, etc.

I think, again, this overstates the application of Chevron. Chevron deference creates a presumption in favor of agencies' interpretation of statutes. It does not protect agencies from arguments objecting to the means by which a level is appropriate or that the sampling process is inaccurate. Nor does Chevron protect agencies from arguments that a specific level (or any interpretation) is "arbitrary and capricious," because if something is arbitrary and capricious then it's outside of Chevron deference.

If Chevron is overturned and agencies no longer have that power, then who will make policy decisions? The courts. And as Sotomayor pointed out during questioning, since justices “routinely disagree” about a law’s meaning the courts will find it impossible to agree on a “best” interpretation of a law.

Yet courts will have to make those kinds of policy decisions anyway. Or tell legislators to rewrite the law, which they cannot do because they're not technical experts.

A variation of Catch-22. - CO

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I agree and would add that for the most part regulations are accepted and generally unchallenged. But when apparent over reach steps on some one with the resources to fight, that person should have access to recourse to an impartial venue. You don't get that when the defendant is also the courts experts witness.

The EPA should not be able to declare the half acre swampy area on one corner of my property is a federal waterway, regulate it, and that be the end of it.

In a separate but related criticism of the way congress operates is found in legislation that good sounding goal without consideration to the difficulty or impossibility of actually implementing it. Leave it to the bureaucrats gets them off the hook.

One example is the EV Mandate.... You are commanded to sell so many by some date they say to automakers with about zero consideration whether the citizenry would desire and buy such a vehicle in the numbers mandated. Ford is unwinding its Electric F150 manufacturing due to no market. Inefficient for Ford and for our economy.

No. Because half of infninity is still infinity and if an agency is given no assumption of correctness, corporations can not only argue that a specific LEVEL is arbitrary and capricious without justification, they can also file lawsuits objecting to the MEANS by which the level is measured, arguing the sampling process is inaccurate, subject to partisan interpretation, etc. - WTH

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You make some good and thought provoking points. However we must find some middle ground, if the bureaucrats word is final, then we are creating an un-accountable oligarchy.

There must be some middle ground found somehow to allow common sense from outside the beltway to penetrate the rule making process. The very regulations you defend are where the rubber meets the road for lobbyists, political contributions, and granting favors and the more sunlight, the better.

Congress gives federal agencies the power to make policy choices for good reason: legislators are not technical experts and will never be able to write laws with specific technical details.

If Chevron is overturned and agencies no longer have that power, then who will make policy decisions? The courts. And as Sotomayor pointed out during questioning, since justices “routinely disagree” about a law’s meaning the courts will find it impossible to agree on a “best” interpretation of a law.

Yet courts will have to make those kinds of policy decisions anyway. Or tell legislators to rewrite the law, which they cannot do because they're not technical experts.

But not all Chevron decisions involve highly specific technical matters. The case that's before the Court now doesn't, for example. Federal law expressly allows the agency to require fishing boats to carry monitors - but it doesn't say who pays for those monitors. The agency said the industry has to pay; the industry disagrees. That's not an issue that's beyond the technical capabilities of either the courts or Congress. That's not a complicated technical question - it's not even a scientific question at all, but a pure public policy question. Arguably the issue in Chevron itself (whether a "source" within the Clean Air Act should be considered as a plant-wide thing, or whether changes to or additions to parts of the plant were sources) wasn't an especially technical issue, either - certainly one that was within the capabilities of Congress to legislate.

Legislators have to write laws on technical subjects all the time, and they have access to technical experts to help them manage that. Courts have to rule on technical subjects all the time as well, and the parties to the litigation provide technical expertise to the court to help them manage that all the time as well. And agency heads pretty much have to do the same thing - most of the heads of EPA (for example) haven't been scientists, but have been lawyers or lobbyists or other government folks who have skills at managing a large government organization but aren't themselves technical experts. And even an EPA administrator who is a scientist (say, a chemical engineer or an air quality researcher) is still going to have to rely on other experts for all the other fields they have to regulate (like water quality or fisheries or wetlands species preservation).

bighairymike: The EPA should not be able to declare the half acre swampy area on one corner of my property is a federal waterway, regulate it, and that be the end of it.

The statute was actually pretty clear: the wetland had to be "adjacent" to a waterway, not be a waterway. Since it was adjacent, the high court said, well, then let's go to Plan B: the clear-statement rule.

Justice Kagan wrote (bolding mine):

As the majority concedes, the statute “tells us that at least some wetlands must qualify as ‘waters of the United States.’” Ante, at 18–19. More, the statute tells us what those “some wetlands” are: the “adjacent” ones. And again, as JUSTICE KAVANAUGH shows, “adjacent” does not mean adjoining. See post, at 4–6; supra, at 1–2. So the majority proceeds to its back-up plan. It relies as well on a judicially manufactured clear-statement rule. When Congress (so says the majority) exercises power “over private property” — particularly, over “land and water use” — it must adopt “exceedingly clear language.” Ante, at 23 (internal quotation marks omitted). There is, in other words, a thumb on the scale for property owners — no matter that the Act (i.e., the one Congress enacted) is all about stopping property owners from polluting. See supra, at 2. Even assuming that thumb’s existence, the majority still would be wrong. As JUSTICE KAVANAUGH notes, clear-statement rules operate (when they operate) to resolve problems of ambiguity and vagueness. See post, at 11; see also Bond v. United States, 572 U. S. 844, 859 (2014); United States v. Bass, 404 U. S. 336, 347 (1971). And no such problems are evident here. One last time: “Adjacent” means neighboring, whether or not touching; so, for example, a wetland is adjacent to water on the other side of a sand dune. That congressional judgment is as clear as clear can be — which is to say, as clear as language gets. And so a clear-statement rule must leave it alone. The majority concludes otherwise because it is using its thumb not to resolve ambiguity or clarify vagueness, but instead to “correct” breadth.

bighairymike: One example is the EV Mandate.... You are commanded to sell so many by some date they say to automakers with about zero consideration whether the citizenry would desire and buy such a vehicle in the numbers mandated.

Again, the federal government does not have an EV Mandate. We discussed this already. The environmental protection agency can set emission standards but the car companies can get to those standards any way they want. General Motors announced in January 2021 that it would no longer sell gas-powered cars by 2035, and other leading automakers similarly promised rapid shifts. That was before the Biden administration was settled into their desks in their new offices.

Again, the federal government does not have an EV Mandate. We discussed this already. The environmental protection agency can set emission standards but the car companies can get to those standards any way they want. General Motors announced in January 2021 that it would no longer sell gas-powered cars by 2035, and other leading automakers similarly promised rapid shifts. That was before the Biden administration was settled into their desks in their new offices. - CO

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Although intended as rebuttal, I think it illustrates exactly what I am talking about.

First of all setting emission standards close enough to zero IS a backhanded EV mandate.
Beyond that, that this pie in the sky mandate was established pre-Biden doesn't excuse the hubris of it all. My criticism is a pox on most of them either side of the aisle.

If Chevron is overturned and agencies no longer have that power, then who will make policy decisions?

Look to Russia. An autocrat and his sycophantic oligarchs will make the decisions.

OK, not if Chevron is overturned, but it is a first step. Decisions must benefit the elites at the top.

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