And this really is big news. Thanks for reading Meaning In History! Subscribe for free to receive new posts and support my work. Here are two tweets by law prof Jonathan Turley that confirm that the SCOTUS will expressly review the Chevron Doctrine and whether to overrule it. Turley is quoting the SCOTUS here—it’s not wishful thinking that
I wonder what sort of retroactive power any ruling will have. Chevron has piled up mountains of self-government-destroying regulatory and administrative poison over its ~40 years. If all we get is a ruling of "okay, what's done is done but do behave better in the future," that will be better than nothing but still woefully short of what is needed.
All those ambiguous regulations given Chevron deference over the years should be readily subject to whatever new process the Court prescribes, imho. Maybe not automatically, but certainly whenever any of them is challenged in court under the new legal regime, an extremely heavy burden of proof should be put on those defending the previously applied deference so that getting the deference overturned can be done quickly and cheaply as opposed to having to fight tooth and claw for years on end for every little inch of deference removal.
SCOTUS can hand down a ruling that makes these retroactive challenges relatively easy or hard as hell. Let's hope for the former.
That's not how it would work. Overruling Chevron would open the door wide for anyone to challenge all regs, as well as constitutionality of some of the structure (as in the previous case discussed). It would also open the door wide for courts to reject agency rationalizations. The standard for judging regs might vary according to circumstances, but presumptions of agency expertise would have to be justified, not taken for granted.
Thanks, Mark. I was hoping you'd weigh in here, given how much more you know about these things. I feel a lot better - now I just hope we get a nice, clear ruling.
Truly (and despite my cynical nature I do mean truly) fantastic news. It will be fascinating to watch how things play out if and when the Chevron defense is struck down. Congress has been way too happy to delegate as much authority to the Executive as it possibly can (including war powers), along with throwing money at it and giving it virtually unlimited authority to act. They have thereby happily absolved themselves of any responsibility for the bureaucratic actions that have continually reduced our freedoms and our pocketbooks.
As a plus for the Republicans, they can criticize the bureaucracy as part of their spiel as being the party of "smaller government." Please note that the only reason the debt ceiling keeps being broached is because the Republicans caved in and supported earlier "deficit" spending bills. Oh, but now they recognize the error of their ways, for the twentieth time, hahaha.
Anyway, there is way too much power in the Executive and this is a good first step to make the Legislative more responsible and the Judicial more involved. Now if only they could stop this group:
Speaking of Power…and USAID seems to have gobs of it ($200 million to fund corona virus research in China, no less), but as this segment shows, Samantha repeatedly gives Senator Paul the brush-off. A great example as you just mentioned Dissonant, of the brazen unaccountability of Exec branch agencies…RP sticks to his guns; I do admire his self-control!
Mark, unfortunately, as a practical matter the authority of the Financial Stability Oversight Council will not be affected by the debt ceiling debate, as its authority has been legislatively established by Dodd-Frank. That was sort of my point although perhaps poorly made. Even apart from Chevron, the Congress has legislatively delegated so much of their authority away to the Executive Branch in an arguably unconstitutional way. The House is supposed to be the source of decision making over expenditures, within the scope of a fiscal budget; yet agencies in the Executive Branch now have power independent of Congressional oversight to expend funds even if such funds have not been allocated as part of such a budget. That is a problem.
"the Congress has legislatively delegated so much of their authority away to the Executive Branch in an arguably unconstitutional way."
Trying to use a court to restore a republic that's been taken over by oligarchs is a slow, uphill slog. However, this court seems to be thinking this through. The case that I wrote about two weeks ago--and it was 9-0--made it much easier for plaintiffs **to challenge the constitutionality of the way an agency is set up.** These cases take years to get resolved, which is why fundamental reform of this sort through the courts is so frustrating. SCOTUS has to wait for the right cases to arrive and they often arrive out of the order which would be preferable. But they seem to be making consistently right decisions.
In a historical twist, it was the Reagan administration’s Environmental Protection Agency administrator, Anne Gorsuch Burford—whose son, Neil Gorsuch, now sits on the Supreme Court—who prompted the Chevron case. Ms. Burford began an anti-regulatory push, raising the ire of environmentalists by rolling back EPA rules and curbing enforcement of pollution standards.
One such effort involved altering the Carter-era EPA’s definition of stationary sources of pollution under the Clean Air Act. The Natural Resources Defense Council sued, arguing the new regulation violated the Clean Air Act, and a federal appeals court agreed. Chevron U.S.A., General Motors and other companies intervened to defend the looser standard, and prevailed in the 1984 Supreme Court decision.
In a 2016 opinion he wrote while serving on the 10th U.S. Circuit Court of Appeals, Justice Gorsuch said the Chevron deference and another Supreme Court ruling “permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.”
“Maybe the time has come to face the behemoth,” he wrote.
The elected representatives are shielded from the responsibility of their laws by the unelected bureaucracy. They do not rein them in because that would put accountability too close to their doorstep and limit the effectiveness of their voice opposing the regulatory state when it is profitable to do so.
I wonder what sort of retroactive power any ruling will have. Chevron has piled up mountains of self-government-destroying regulatory and administrative poison over its ~40 years. If all we get is a ruling of "okay, what's done is done but do behave better in the future," that will be better than nothing but still woefully short of what is needed.
All those ambiguous regulations given Chevron deference over the years should be readily subject to whatever new process the Court prescribes, imho. Maybe not automatically, but certainly whenever any of them is challenged in court under the new legal regime, an extremely heavy burden of proof should be put on those defending the previously applied deference so that getting the deference overturned can be done quickly and cheaply as opposed to having to fight tooth and claw for years on end for every little inch of deference removal.
SCOTUS can hand down a ruling that makes these retroactive challenges relatively easy or hard as hell. Let's hope for the former.
That's not how it would work. Overruling Chevron would open the door wide for anyone to challenge all regs, as well as constitutionality of some of the structure (as in the previous case discussed). It would also open the door wide for courts to reject agency rationalizations. The standard for judging regs might vary according to circumstances, but presumptions of agency expertise would have to be justified, not taken for granted.
Thanks, Mark. I was hoping you'd weigh in here, given how much more you know about these things. I feel a lot better - now I just hope we get a nice, clear ruling.
Truly (and despite my cynical nature I do mean truly) fantastic news. It will be fascinating to watch how things play out if and when the Chevron defense is struck down. Congress has been way too happy to delegate as much authority to the Executive as it possibly can (including war powers), along with throwing money at it and giving it virtually unlimited authority to act. They have thereby happily absolved themselves of any responsibility for the bureaucratic actions that have continually reduced our freedoms and our pocketbooks.
As a plus for the Republicans, they can criticize the bureaucracy as part of their spiel as being the party of "smaller government." Please note that the only reason the debt ceiling keeps being broached is because the Republicans caved in and supported earlier "deficit" spending bills. Oh, but now they recognize the error of their ways, for the twentieth time, hahaha.
Anyway, there is way too much power in the Executive and this is a good first step to make the Legislative more responsible and the Judicial more involved. Now if only they could stop this group:
https://en.wikipedia.org/wiki/Financial_Stability_Oversight_Council
From designating Blackrock a "too big to fail" entity and bailing it out:
https://tomluongo.me/2023/05/01/tucker-blackrock-and-the-sifi-two-step/.
Speaking of Power…and USAID seems to have gobs of it ($200 million to fund corona virus research in China, no less), but as this segment shows, Samantha repeatedly gives Senator Paul the brush-off. A great example as you just mentioned Dissonant, of the brazen unaccountability of Exec branch agencies…RP sticks to his guns; I do admire his self-control!
https://youtu.be/OkfaXm56mdU
Yes, a very good example! Thanks, ML!
Yeah, I read that a couple of times earlier today. I get it about SIFI, but I wish I could fit it all together with the debt ceiling battle.
Mark, unfortunately, as a practical matter the authority of the Financial Stability Oversight Council will not be affected by the debt ceiling debate, as its authority has been legislatively established by Dodd-Frank. That was sort of my point although perhaps poorly made. Even apart from Chevron, the Congress has legislatively delegated so much of their authority away to the Executive Branch in an arguably unconstitutional way. The House is supposed to be the source of decision making over expenditures, within the scope of a fiscal budget; yet agencies in the Executive Branch now have power independent of Congressional oversight to expend funds even if such funds have not been allocated as part of such a budget. That is a problem.
"the Congress has legislatively delegated so much of their authority away to the Executive Branch in an arguably unconstitutional way."
Trying to use a court to restore a republic that's been taken over by oligarchs is a slow, uphill slog. However, this court seems to be thinking this through. The case that I wrote about two weeks ago--and it was 9-0--made it much easier for plaintiffs **to challenge the constitutionality of the way an agency is set up.** These cases take years to get resolved, which is why fundamental reform of this sort through the courts is so frustrating. SCOTUS has to wait for the right cases to arrive and they often arrive out of the order which would be preferable. But they seem to be making consistently right decisions.
Thanks very much for sharing your view on this! I really appreciate it.
In a historical twist, it was the Reagan administration’s Environmental Protection Agency administrator, Anne Gorsuch Burford—whose son, Neil Gorsuch, now sits on the Supreme Court—who prompted the Chevron case. Ms. Burford began an anti-regulatory push, raising the ire of environmentalists by rolling back EPA rules and curbing enforcement of pollution standards.
One such effort involved altering the Carter-era EPA’s definition of stationary sources of pollution under the Clean Air Act. The Natural Resources Defense Council sued, arguing the new regulation violated the Clean Air Act, and a federal appeals court agreed. Chevron U.S.A., General Motors and other companies intervened to defend the looser standard, and prevailed in the 1984 Supreme Court decision.
In a 2016 opinion he wrote while serving on the 10th U.S. Circuit Court of Appeals, Justice Gorsuch said the Chevron deference and another Supreme Court ruling “permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.”
“Maybe the time has come to face the behemoth,” he wrote.
So it's in his DNA!
That is fantastic news! Here’s hoping SCOTUS will do the right thing and overrule Chevron.
Not bittersweet at all. This is huge! Power to the non- beaurocrats!
The elected representatives are shielded from the responsibility of their laws by the unelected bureaucracy. They do not rein them in because that would put accountability too close to their doorstep and limit the effectiveness of their voice opposing the regulatory state when it is profitable to do so.
Major piece of the swamp. Open the drain!