The Supreme Court, it appears, is planning to gut most of America’s regulatory agencies in what could be the most consequential re-write of the protective “deep state” since the New Deal…
Not what I wanted to be the first thing I read this morning. Yet not surprising, just another soul-destroying development in the dismantling of our country by the morbidly rich. It would be nice we’re SCOTUS to do the right thing, Thomas. It will, of course--the far right thing. Unfortunately, not enough people understand just how important and pervasive these agencies are. I remember still my great satisfaction in casting my absentee ballot voting for the California Coastal Act when I was a student at Harvard Law School. It may be that blue states will, until their sovereignty is destroyed by SCOTUS (ironic, that), have to try to fill the gap for their citizens as best they can. But that may well prove too expensive, and our taxes and regulatory environment are already costing us people and businesses. Watching this country March backwards since Reagan, and much faster since 2016, has been the most depressing thing in my life, even more than the health problems that forced me to retire and become a virtual recluse over 20 years ago.
I spent eight happy hours with our impish, adorable, incredibly curious and energetic kindergarten grandson yesterday. I know now I will have to leave him a letter to open after he turns 18 apologizing for the dystopian country he will be facing because not enough of us fought hard enough against the malignant plutocrats and the ignorati who follow them. If it were not a death sentence for me, I’d start drinking again, feeling utterly powerless as a feeble 75-year old who spent his professional life as a lawyer with great respect for the law, and his entire life as a quietly patriotic American, son of a career Navy officer who received a Purple Heart for injuries he suffered when his destroyer was shelled by the Japanese in the Battle of Leyte Gulf. Both sentiments dead now, as we cease to be a nation of laws and bend the arc of history backward, against the belief so strongly held by Dr. Martin Luther King, Jr.
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.
This is nuts! Billionaires at it again. Next they'll screw syndicates to just have at last a muzzled labor army of slaves. Poor America. That was the big gop plan. Defunct scotus pdq!
Koch funding always seems to be top of the list for everything that is hurting the country and helping their bottom line. So many of these dots have been connected but not enough people are aware of this. Again, I never seem to hear anyone in the mainstream media utter "Koch". If I start screaming from the mountaintop about the billionaires, people will think that I am a conspiracy nut. And they will probably come back with "but Soros...and Gates...blah blah blah".
People know the power of the ultra-wealthy, but they never REALLY know.
Individual states will find it too costly and exhausting to do the regulatory work that should and mostly has been done by federal agencies. California might be able to pull it off, but each regulatory try will end up in federal court being fought over the Commerce Clause. I’m still amazed the Supreme Court sided with California on the animal welfare issue over enclosure size.
If this comes to pass, there might be a little regulatory relief on the pharmaceutical side as multinational pharmaceutical companies must have drugs signed off by the FDA equivalent of other countries. That’s a question of markets and profits.
I truly don’t understand how even the extreme wealthy, be they kleptocrats or run of the mill mega millionaires/CEOs think they are immune from pollution or contaminated food. Is Love Canal that long ago or when you couldn’t see the sky in large cities? Anyone remember those photos from Life magazine of the effects of mercury poisoning on the neuro development of Japanese children. Lead paint anyone?
Thanks so much for your explanation. If the Supreme Court overturns the Chevron deference, the implications are so far reaching that ”fixing” the court will become a higher priority than climate change.
Those that haven't read the Jungle should. It is an insight into the meat packing industry. It takes place in a Chicago abattoir. President Theodore Roosevelt read it and threw his dinner out the window, and that is the birth of the FDA.
Besides being filthy, infested with flies and disease. A lot of cattle weren't killed with the blow of a sledge hammer to the forehead, before have chains looped around their feet, and being gutted while still alive, you could hear the moowing of the cattle. A worker slipped into the rendering vat, which is used to make lard, rather than fishing him out and throwing away the lard, they left him in and fished out the bones and clothes, and sold the lard.
I wish there was a psychological autoposy on Vivek Ramaswamy and his ilk. The man is born of Sikh Parents in the US., and I have noticed that there are two classes of "Indians" and I don't mean native Americans. The extreme right wing like Vivek and Nimrata and liberals like Ahrendeti Roy. Ari Veshi whose parents are Gujarat Indians and Anand Giridharadas.
What I don't get is the right wing extremists like Vivek and and Nimarata. You would think that their parents migrated here for it's freedoms and opportunities, but turn into autocrats or autocrat enthusiasts.
Another message of doom from the most monied people, the Corporations .
God forbid anyone’s expertise coming up against these protected by money , which they want to be the only power in this country.
This Supreme Court in its Citizens (Defeated )United, case was just a precursor to the ultimate ‘dumbing down’ of America.
Now the scientists and educated experts in these areas will be dismissed and the truly brilliant members of the House will sit around an fire pit and conger up their usually dull ideas to apply to Climate Change, the Pharmaceutical companies, Oil and gas People, and others who in their own way will approach the problems of this country and our world. All because their ‘voodoo ‘ determinations have been so successful in the past.
Successful at disregarding the majority of concerned citizens in this country, and ignoring the fact that this is supposed to be based on the will of the people , under our Constitution , providing some basis in reality that is the opposite of this ‘money matters exclusively ‘ vision of the bribed Justices of the Supreme Court.
These practices are causing serious , ultimately fatal results for people who don’t have millions and billions to protect their families and children from the implications of these truly devastating plans for the wealthy to increase their obscene wealth and terrible priorities.
What can we expect from people who want to take ivermectin and hydrochloroquine and bleach for the covid? Of course no masks. I bet they would like to repeal seat belt laws also! Cancer for the progressives is a good thing. Cancer for the right wingers is just God's doing. I can't see any of the billionaires standing up to the fascists in the future either? Yet the right wingers wants more babies.
"ONLY" if all the babies born and raised from conception have all their needs met in agnostic kibutzes, will there ever be any hope for humanity. We could end racism, all religious hatred and all child abuse, crime, obesity and insanity and much more. There is not enough love in the world currently.
Collectively these right-wing Justices have more baggage than Reagan International. Knowing their histories at least shines a light on their motivations, because it would not make sense otherwise. Why advocate for more complicated laws unless there is a big pay-off in the end.
The bodies will keep stacking up around the Supreme Court of the 2020's if they get this wrong. Women are already unable to obtain reproductive health care to save their lives; the Court will add to that deadly products, and we'll lose plants and animals that our lives depend on. What a waste. So many and so much dead on the altar of cruel right-wing ideology!
Not what I wanted to be the first thing I read this morning. Yet not surprising, just another soul-destroying development in the dismantling of our country by the morbidly rich. It would be nice we’re SCOTUS to do the right thing, Thomas. It will, of course--the far right thing. Unfortunately, not enough people understand just how important and pervasive these agencies are. I remember still my great satisfaction in casting my absentee ballot voting for the California Coastal Act when I was a student at Harvard Law School. It may be that blue states will, until their sovereignty is destroyed by SCOTUS (ironic, that), have to try to fill the gap for their citizens as best they can. But that may well prove too expensive, and our taxes and regulatory environment are already costing us people and businesses. Watching this country March backwards since Reagan, and much faster since 2016, has been the most depressing thing in my life, even more than the health problems that forced me to retire and become a virtual recluse over 20 years ago.
I spent eight happy hours with our impish, adorable, incredibly curious and energetic kindergarten grandson yesterday. I know now I will have to leave him a letter to open after he turns 18 apologizing for the dystopian country he will be facing because not enough of us fought hard enough against the malignant plutocrats and the ignorati who follow them. If it were not a death sentence for me, I’d start drinking again, feeling utterly powerless as a feeble 75-year old who spent his professional life as a lawyer with great respect for the law, and his entire life as a quietly patriotic American, son of a career Navy officer who received a Purple Heart for injuries he suffered when his destroyer was shelled by the Japanese in the Battle of Leyte Gulf. Both sentiments dead now, as we cease to be a nation of laws and bend the arc of history backward, against the belief so strongly held by Dr. Martin Luther King, Jr.
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.
This is nuts! Billionaires at it again. Next they'll screw syndicates to just have at last a muzzled labor army of slaves. Poor America. That was the big gop plan. Defunct scotus pdq!
Koch funding always seems to be top of the list for everything that is hurting the country and helping their bottom line. So many of these dots have been connected but not enough people are aware of this. Again, I never seem to hear anyone in the mainstream media utter "Koch". If I start screaming from the mountaintop about the billionaires, people will think that I am a conspiracy nut. And they will probably come back with "but Soros...and Gates...blah blah blah".
People know the power of the ultra-wealthy, but they never REALLY know.
If the court choose this path, then the people will lose confidence in it to do its job. The days of that kind of court are numbered.
Individual states will find it too costly and exhausting to do the regulatory work that should and mostly has been done by federal agencies. California might be able to pull it off, but each regulatory try will end up in federal court being fought over the Commerce Clause. I’m still amazed the Supreme Court sided with California on the animal welfare issue over enclosure size.
If this comes to pass, there might be a little regulatory relief on the pharmaceutical side as multinational pharmaceutical companies must have drugs signed off by the FDA equivalent of other countries. That’s a question of markets and profits.
Environmental regulations will be most impacted.
Industry self regulation is a joke.
I don't think this is JUST the future of the USA this effects the whole world where the US is one of the major polluters!
Gorsuch should recuse himself, but won’t. Same for Barrett.
I truly don’t understand how even the extreme wealthy, be they kleptocrats or run of the mill mega millionaires/CEOs think they are immune from pollution or contaminated food. Is Love Canal that long ago or when you couldn’t see the sky in large cities? Anyone remember those photos from Life magazine of the effects of mercury poisoning on the neuro development of Japanese children. Lead paint anyone?
First the EPA, next the CDC.
Thanks so much for your explanation. If the Supreme Court overturns the Chevron deference, the implications are so far reaching that ”fixing” the court will become a higher priority than climate change.
Those that haven't read the Jungle should. It is an insight into the meat packing industry. It takes place in a Chicago abattoir. President Theodore Roosevelt read it and threw his dinner out the window, and that is the birth of the FDA.
Besides being filthy, infested with flies and disease. A lot of cattle weren't killed with the blow of a sledge hammer to the forehead, before have chains looped around their feet, and being gutted while still alive, you could hear the moowing of the cattle. A worker slipped into the rendering vat, which is used to make lard, rather than fishing him out and throwing away the lard, they left him in and fished out the bones and clothes, and sold the lard.
I wish there was a psychological autoposy on Vivek Ramaswamy and his ilk. The man is born of Sikh Parents in the US., and I have noticed that there are two classes of "Indians" and I don't mean native Americans. The extreme right wing like Vivek and Nimrata and liberals like Ahrendeti Roy. Ari Veshi whose parents are Gujarat Indians and Anand Giridharadas.
What I don't get is the right wing extremists like Vivek and and Nimarata. You would think that their parents migrated here for it's freedoms and opportunities, but turn into autocrats or autocrat enthusiasts.
Then again there is the fascist BJP party of Modi in India, it's rulling (forever) party.https://en.wikipedia.org/wiki/Bharatiya_Janata_Party
Then again Americans knew little about their own country, much less what is going on in other countries, whose policies and values affect ours.
I read in my undergraduate course. Probably one of the books on the ban list these days.
Another message of doom from the most monied people, the Corporations .
God forbid anyone’s expertise coming up against these protected by money , which they want to be the only power in this country.
This Supreme Court in its Citizens (Defeated )United, case was just a precursor to the ultimate ‘dumbing down’ of America.
Now the scientists and educated experts in these areas will be dismissed and the truly brilliant members of the House will sit around an fire pit and conger up their usually dull ideas to apply to Climate Change, the Pharmaceutical companies, Oil and gas People, and others who in their own way will approach the problems of this country and our world. All because their ‘voodoo ‘ determinations have been so successful in the past.
Successful at disregarding the majority of concerned citizens in this country, and ignoring the fact that this is supposed to be based on the will of the people , under our Constitution , providing some basis in reality that is the opposite of this ‘money matters exclusively ‘ vision of the bribed Justices of the Supreme Court.
These practices are causing serious , ultimately fatal results for people who don’t have millions and billions to protect their families and children from the implications of these truly devastating plans for the wealthy to increase their obscene wealth and terrible priorities.
What can we expect from people who want to take ivermectin and hydrochloroquine and bleach for the covid? Of course no masks. I bet they would like to repeal seat belt laws also! Cancer for the progressives is a good thing. Cancer for the right wingers is just God's doing. I can't see any of the billionaires standing up to the fascists in the future either? Yet the right wingers wants more babies.
"ONLY" if all the babies born and raised from conception have all their needs met in agnostic kibutzes, will there ever be any hope for humanity. We could end racism, all religious hatred and all child abuse, crime, obesity and insanity and much more. There is not enough love in the world currently.
Why do we have a Congress? House of Representative and Senate? The supremes seem to be in charge and they are unelected.
Collectively these right-wing Justices have more baggage than Reagan International. Knowing their histories at least shines a light on their motivations, because it would not make sense otherwise. Why advocate for more complicated laws unless there is a big pay-off in the end.
The bodies will keep stacking up around the Supreme Court of the 2020's if they get this wrong. Women are already unable to obtain reproductive health care to save their lives; the Court will add to that deadly products, and we'll lose plants and animals that our lives depend on. What a waste. So many and so much dead on the altar of cruel right-wing ideology!
Thom: Once again, I am amazed there is no movement to declare the SCOTUS so corrupt as to have shredded its mandate, and then ignore its judgments.