I've written about this many times. In theory Congress gave us a mini Constitution in 1948 when it passed the Administrative Procedure Act., APA, which in part sets out rules for agencies to write regulations
Unfortunately, starting in the 1990s organizations like the Heritage Foundation and …
I've written about this many times. In theory Congress gave us a mini Constitution in 1948 when it passed the Administrative Procedure Act., APA, which in part sets out rules for agencies to write regulations
Unfortunately, starting in the 1990s organizations like the Heritage Foundation and the Federalist Society began to oppose "the administrative state." Chevron was a case that provided that where there was some question about the meaning of a statute, the Supreme Court would defer to the agency interpretation of its own regulations.
Judge Rogers in part addressed the APA. "Under the APA’s deferential standard, the court upholds agency action unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
Chevron , 1984 was not the first time that the Supreme Court expressed agency deference. In Skidmore Swift & Co., 323 U.S. 134 (1944), it said that an administrative agency's interpretative rules deserve deference according to their persuasiveness. In Skidmore there was no issue whether there were different interpretations from the language of the regulation.
From my perspective, an agency makes its best case when it holds hearings and there are facts that show a need for regulation.
What has been happening in administrative law, is there is a theory in right wing circles that because administrative law was not mentioned by the Constitution, all of it is unconstitutional. For example in
"Is administrative law unlawful?" Philip Hamburger, Professor of Law at Columbia argues that while the federal government traditionally could constrain liberty only through acts of Congress and the courts, the executive branch has increasingly come to control Americans through its own administrative rules and adjudication, thus raising disturbing questions about the effect of this sort of state power on American government and society. 2014.
In National Association of Business v. DOL (OSHA), 2022, SCOTUS stopped an Occupational Safety and Health Administration rule for larger businesses to either require vaccines or have a masking and testing policy. And in a 5-4 order, the justices allowed a Centers for Medicare and Medicaid Services vaccination mandate for health care workers at federally funded health care facilities. IMHO had Biden held hearings and made factual findings under APA procedures, the outcome could have been different.
In Biden v. Nebraska, 2023. the Supreme Court ruled that the student-debt cancellation plan was an impermissible interpretation of a provision in the post–9/11 HEROES Act that allows the secretary of education to “waive or modify” loan terms in certain emergencies. In finding the secretary’s interpretation of that limiting language too much of a stretch, the Court recognized that executive-branch officials can only enforce duly enacted congressional legislation rather than taking action that goes beyond those parameters to make new law. Chief Justice John Roberts’s majority opinion also cited a backup argument, known as the “major questions doctrine”—holding that the Court will not assume that Congress has, without explicitly saying so, delegated the power to regulate significant economic or social matters.
Several Justices have criticized or sought to limit Chevron deference in recent years. In 2015, Thomas wrote that Chevron “wrests from Courts the ultimate interpretative authority to ‘say what the law is’” and instead gives it to the executive branch. Gorsuch has written that “the aggressive reading of Chevron has more or less fallen into desuetude—the government rarely invokes it, and courts even more rarely rely upon it,” but “the whole project deserves a tombstone no one can miss.”
Roberts has embraced the “major questions” limitation on Chevron, declining to accept an implicit delegation of authority on any “question of deep economic and political significance that is central to [the] statutory scheme” and assuming instead that “had Congress wished to assign that question to an agency, it surely would have done so expressly.” Justice Samuel Alito has observed that Chevron resulted in “a massive shift of lawmaking from the elected representatives of the people to unelected bureaucrats.”[Justice Brett Kavanaugh has also written in favor of “preserv[ing] the separation of powers” and “vital check[s] on expansive and aggressive assertions of executive authority.” Elsewhere, he has written that Chevron’s command that reviewing courts “must exhaust all the traditional tools of construction before concluding that an agency rule is ambiguous” means that Chevron, if properly applied, should be relatively inconsequential: “the court will almost always reach a conclusion about the best interpretation.”
These justices invoke the nondelegation doctrine—the foundational claim that Congress can’t relinquish its own lawmaking power. In this case, they have to admit that delegation was effectuated.
However, I read the government's brief and it does not lay out how rulemaking was effectuated. The reason why deference is granted is that the industry had a due process opportunity to be heard at the agency level and failed to make it. The directive is clear. This should be more Skidmore than Chevron!
But as my 'ol pappy used to say, sometimes justice takes a kick in the ass sometimes.
Daniel Solomon said, "The reason why deference is granted is that the industry had a due process opportunity to be heard at the agency level and failed to make it."
So the public may have lost important protections? It feels like our system of justice has morphed into a fraud on the public.
In past years there might have been "institutional knowledge" but the way they mishandled the mask issue as an emergency rather than establish a factual basis of need leads me to conclude they don't know what they are doing.
I worked for many years in the field that the EPA took over and then characterized as "hazardous waste". I followed the court cases carefully.
What I saw was the EPA giving voice to the most uninformed, ignorant fright of the environmentalists who wanted to grab any chemical that was not being actively used in a production process at that very moment and insist that it be thrown into a dump.
Because I was running a company (Zero Waste Systems Inc.) that took hundreds of tons of all kinds of chemicals in from companies that had "used" them, and found new homes for them basically as is, and I sometimes had to spend days watching chemical dumps operate, I came to know that 80% of the chemicals going into dumps could be reused instead. Often they were brand new chemicals, never opened, never used, that were sent to dumps for administrative (and ignorant) reasons. The EPA was totally on board with this wasteful and destructive program. As a re-user of chemical excesses, I counted the EPA as my enemy. I had no respect for them. They were like a frightened housewife, listening to no one who actually understood the situation but pretending to be experts. I never heard of Chevron Deference but the rule was that courts would defer to the EPA and much harm was done this way.
I hate having to recall and report all this because it sounds like I am against the Chevron Deference. I am not! I just happen to have watched it produce the opposite of its intended effect in one field. I rely on the Agencies for most of the supports and safety in my life just like all of you. The haughtiness of the EPA needs to be modified, but not by throwing out the baby with the bathwater. That struggle that I watched is over now, anyway. The EPA won. The watchword is "maximize waste". The EPA approach is the law, which is: for each industry and each pollutant, rope off some marginal piece of the environment (some sacrificial land, some sacrificial people or some allowed ppm pollution which is legal) and fill it with pollution to your heart's content. Try not to go outside of those boundaries, but if you do, just pay a small fine for the privilege. There are thousands of chemicals that can each have a few ppm pollution in drinking water. I always wondered, if you added up all of the legal contaminations of drinking water, could you have pure chemicals without any water, call it drinking water and be perfectly legal. You could surely come close. The pollution we now are forced to live with (PFA's, methane, benzene, nanoplastics, you name it) is a living demonstration of the insanity of the EPA's approach to pollution, but I guess it's settled law by now.
So where does this go? Making one side (agencies) the perfect experts in all situations, is not good. Deference to agencies is needed, but with mitigating circumstances. It's a moderate position, but what else is new.
Trump was not involved. I was working in the 1980's.
What kind of variance? Agencies got the deference. End of story. I tell a few actual stories in my book Getting To Zero Waste. One was about an innocent seller of specialty chemicals. The Health Dept. lost the analysis. They had no proof that anything had ever polluted anything (it probably never happened). Despite the absence of any proof against him, the judge threw the book at him. He lost his house. When it came to "hazardous waste" (so scary) law no longer mattered. Common sense didn't matter. Just attack anyone connected.
Daniel Solomon: You misunderstood my retelling. I did not have a personal case that I am complaining about. In my business, I was trying to elevate the reuse of chemicals to the highest and best use. The EPA, after May 1, 1980, elevated destruction and disposal to the highest and best use. They wielded CERCLA (the Superfund law) like a mighty sword. There was one, tiny, mealy mouthed recognition of reuse in limited conditions. that made no sense. No matter, it was all there was so I relied on it, making my best legal argument. We were never directly challenged by the EPA but they went around the country in an orgy of scaring industrialists that placing one foot wrong, would subject them personally to a year in jail and $25,000 fine for EVERY DAY
(sorry, continue) that they failed to follow the new hazardous waste rules. And this terrified business owners, as it was intended. So from then on, they would self-censor before daring to reuse excess (even brand new) chemicals. The EPA claimed that if the thought CROSSED YOUR MIND that you did not need some chemical you owned, AT THAT MAGICAL MOMENT it became a hazardous waste and had to be DISPOSED OF IN NINETY DAYS or else. Ninety days was usually insufficient to arrange for reuse, especially when we were not informed of the opportunity until one week before the ninety days expired (hazardous waste disposal companies were in the phone book, we were not). This is when telepathy entered US law.
Disturbing, to say the least! I know that bureaucrats can bumble things, but your story is really alarming. It is probably a good part of why business CEOs are all republicans. Where were the experts to testify, when all this started?
The truth of matter is the Supreme Court Justices, as high up their nose that they put the cocaine,do have brains to handle everything being handled by the various agencies. One has to ask why they have to send their noses up the wall to subvert the intellectuals who are capable of handling those decisions and questions. I think some of them believe that they have been ordained by God or at least the Catholic Bishops of America to make such decisions. This will be the downfall of the United States of America. The question is Can we ever get America back or will religious fascism become the way of American Life? I believe inquisitions and witch hunts will be next.
This used to be my subject. Administrative Law.
I've written about this many times. In theory Congress gave us a mini Constitution in 1948 when it passed the Administrative Procedure Act., APA, which in part sets out rules for agencies to write regulations
Unfortunately, starting in the 1990s organizations like the Heritage Foundation and the Federalist Society began to oppose "the administrative state." Chevron was a case that provided that where there was some question about the meaning of a statute, the Supreme Court would defer to the agency interpretation of its own regulations.
Judge Rogers in part addressed the APA. "Under the APA’s deferential standard, the court upholds agency action unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
Chevron , 1984 was not the first time that the Supreme Court expressed agency deference. In Skidmore Swift & Co., 323 U.S. 134 (1944), it said that an administrative agency's interpretative rules deserve deference according to their persuasiveness. In Skidmore there was no issue whether there were different interpretations from the language of the regulation.
From my perspective, an agency makes its best case when it holds hearings and there are facts that show a need for regulation.
What has been happening in administrative law, is there is a theory in right wing circles that because administrative law was not mentioned by the Constitution, all of it is unconstitutional. For example in
"Is administrative law unlawful?" Philip Hamburger, Professor of Law at Columbia argues that while the federal government traditionally could constrain liberty only through acts of Congress and the courts, the executive branch has increasingly come to control Americans through its own administrative rules and adjudication, thus raising disturbing questions about the effect of this sort of state power on American government and society. 2014.
In National Association of Business v. DOL (OSHA), 2022, SCOTUS stopped an Occupational Safety and Health Administration rule for larger businesses to either require vaccines or have a masking and testing policy. And in a 5-4 order, the justices allowed a Centers for Medicare and Medicaid Services vaccination mandate for health care workers at federally funded health care facilities. IMHO had Biden held hearings and made factual findings under APA procedures, the outcome could have been different.
In Biden v. Nebraska, 2023. the Supreme Court ruled that the student-debt cancellation plan was an impermissible interpretation of a provision in the post–9/11 HEROES Act that allows the secretary of education to “waive or modify” loan terms in certain emergencies. In finding the secretary’s interpretation of that limiting language too much of a stretch, the Court recognized that executive-branch officials can only enforce duly enacted congressional legislation rather than taking action that goes beyond those parameters to make new law. Chief Justice John Roberts’s majority opinion also cited a backup argument, known as the “major questions doctrine”—holding that the Court will not assume that Congress has, without explicitly saying so, delegated the power to regulate significant economic or social matters.
Several Justices have criticized or sought to limit Chevron deference in recent years. In 2015, Thomas wrote that Chevron “wrests from Courts the ultimate interpretative authority to ‘say what the law is’” and instead gives it to the executive branch. Gorsuch has written that “the aggressive reading of Chevron has more or less fallen into desuetude—the government rarely invokes it, and courts even more rarely rely upon it,” but “the whole project deserves a tombstone no one can miss.”
Roberts has embraced the “major questions” limitation on Chevron, declining to accept an implicit delegation of authority on any “question of deep economic and political significance that is central to [the] statutory scheme” and assuming instead that “had Congress wished to assign that question to an agency, it surely would have done so expressly.” Justice Samuel Alito has observed that Chevron resulted in “a massive shift of lawmaking from the elected representatives of the people to unelected bureaucrats.”[Justice Brett Kavanaugh has also written in favor of “preserv[ing] the separation of powers” and “vital check[s] on expansive and aggressive assertions of executive authority.” Elsewhere, he has written that Chevron’s command that reviewing courts “must exhaust all the traditional tools of construction before concluding that an agency rule is ambiguous” means that Chevron, if properly applied, should be relatively inconsequential: “the court will almost always reach a conclusion about the best interpretation.”
These justices invoke the nondelegation doctrine—the foundational claim that Congress can’t relinquish its own lawmaking power. In this case, they have to admit that delegation was effectuated.
However, I read the government's brief and it does not lay out how rulemaking was effectuated. The reason why deference is granted is that the industry had a due process opportunity to be heard at the agency level and failed to make it. The directive is clear. This should be more Skidmore than Chevron!
But as my 'ol pappy used to say, sometimes justice takes a kick in the ass sometimes.
Daniel Solomon said, "The reason why deference is granted is that the industry had a due process opportunity to be heard at the agency level and failed to make it."
So the public may have lost important protections? It feels like our system of justice has morphed into a fraud on the public.
I also fault the Biden administration for having limited knowledge of the history of the APA and deference.
They should have employed more from the lawyer class.
In past years there might have been "institutional knowledge" but the way they mishandled the mask issue as an emergency rather than establish a factual basis of need leads me to conclude they don't know what they are doing.
This stuff is arcane.
I worked for many years in the field that the EPA took over and then characterized as "hazardous waste". I followed the court cases carefully.
What I saw was the EPA giving voice to the most uninformed, ignorant fright of the environmentalists who wanted to grab any chemical that was not being actively used in a production process at that very moment and insist that it be thrown into a dump.
Because I was running a company (Zero Waste Systems Inc.) that took hundreds of tons of all kinds of chemicals in from companies that had "used" them, and found new homes for them basically as is, and I sometimes had to spend days watching chemical dumps operate, I came to know that 80% of the chemicals going into dumps could be reused instead. Often they were brand new chemicals, never opened, never used, that were sent to dumps for administrative (and ignorant) reasons. The EPA was totally on board with this wasteful and destructive program. As a re-user of chemical excesses, I counted the EPA as my enemy. I had no respect for them. They were like a frightened housewife, listening to no one who actually understood the situation but pretending to be experts. I never heard of Chevron Deference but the rule was that courts would defer to the EPA and much harm was done this way.
I hate having to recall and report all this because it sounds like I am against the Chevron Deference. I am not! I just happen to have watched it produce the opposite of its intended effect in one field. I rely on the Agencies for most of the supports and safety in my life just like all of you. The haughtiness of the EPA needs to be modified, but not by throwing out the baby with the bathwater. That struggle that I watched is over now, anyway. The EPA won. The watchword is "maximize waste". The EPA approach is the law, which is: for each industry and each pollutant, rope off some marginal piece of the environment (some sacrificial land, some sacrificial people or some allowed ppm pollution which is legal) and fill it with pollution to your heart's content. Try not to go outside of those boundaries, but if you do, just pay a small fine for the privilege. There are thousands of chemicals that can each have a few ppm pollution in drinking water. I always wondered, if you added up all of the legal contaminations of drinking water, could you have pure chemicals without any water, call it drinking water and be perfectly legal. You could surely come close. The pollution we now are forced to live with (PFA's, methane, benzene, nanoplastics, you name it) is a living demonstration of the insanity of the EPA's approach to pollution, but I guess it's settled law by now.
So where does this go? Making one side (agencies) the perfect experts in all situations, is not good. Deference to agencies is needed, but with mitigating circumstances. It's a moderate position, but what else is new.
First, the EPA under Trump did not resemble it under other administrations.
Second, state whether or not you asked them for a variance, went to court.
Daniel:
Trump was not involved. I was working in the 1980's.
What kind of variance? Agencies got the deference. End of story. I tell a few actual stories in my book Getting To Zero Waste. One was about an innocent seller of specialty chemicals. The Health Dept. lost the analysis. They had no proof that anything had ever polluted anything (it probably never happened). Despite the absence of any proof against him, the judge threw the book at him. He lost his house. When it came to "hazardous waste" (so scary) law no longer mattered. Common sense didn't matter. Just attack anyone connected.
I heard some variance cases. I also heard environmental whistleblower cases.
Sounds like your complaint was with a state or local agency, and it was a criminal case. NOT THE EPA.
Daniel Solomon: You misunderstood my retelling. I did not have a personal case that I am complaining about. In my business, I was trying to elevate the reuse of chemicals to the highest and best use. The EPA, after May 1, 1980, elevated destruction and disposal to the highest and best use. They wielded CERCLA (the Superfund law) like a mighty sword. There was one, tiny, mealy mouthed recognition of reuse in limited conditions. that made no sense. No matter, it was all there was so I relied on it, making my best legal argument. We were never directly challenged by the EPA but they went around the country in an orgy of scaring industrialists that placing one foot wrong, would subject them personally to a year in jail and $25,000 fine for EVERY DAY
(sorry, continue) that they failed to follow the new hazardous waste rules. And this terrified business owners, as it was intended. So from then on, they would self-censor before daring to reuse excess (even brand new) chemicals. The EPA claimed that if the thought CROSSED YOUR MIND that you did not need some chemical you owned, AT THAT MAGICAL MOMENT it became a hazardous waste and had to be DISPOSED OF IN NINETY DAYS or else. Ninety days was usually insufficient to arrange for reuse, especially when we were not informed of the opportunity until one week before the ninety days expired (hazardous waste disposal companies were in the phone book, we were not). This is when telepathy entered US law.
And Daniel, pretty much every case involving CERCLA was a criminal case. That is not a pertinent distinction.
I did CERCLA whistleblower cases. Not true. A lot are civil "penalty" cases.
You could have petitioned the agency for a waiver if more time was needed.
Disturbing, to say the least! I know that bureaucrats can bumble things, but your story is really alarming. It is probably a good part of why business CEOs are all republicans. Where were the experts to testify, when all this started?
The truth of matter is the Supreme Court Justices, as high up their nose that they put the cocaine,do have brains to handle everything being handled by the various agencies. One has to ask why they have to send their noses up the wall to subvert the intellectuals who are capable of handling those decisions and questions. I think some of them believe that they have been ordained by God or at least the Catholic Bishops of America to make such decisions. This will be the downfall of the United States of America. The question is Can we ever get America back or will religious fascism become the way of American Life? I believe inquisitions and witch hunts will be next.