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.
What I don't understand is why the parties have not filed motions to voir dire some of the justices.
28 U.S. Code § 455 - Disqualification of justice, judge, or magistrate judge
(a)Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his [or her] impartiality might reasonably be questioned.
Daniel, Good question. Might the answer be the parties know the nine members (definitely six) consider themselves of high ethics and incorruptible? Not to mention the fear of a justice’s wrath the next time around.
“What comes around, goes around”. Justice Kavanaugh
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 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!
I noticed that Daniel. And I have a suspicion why. As George Santos or whatever his real name is, said. They all have dirty laundry, air one and you air them all. Santos is not airing the laundry he knows because he has been warned off, take it or else.
As I've said previously. Enter the Capitol penniless and exit a millionaire., that is why nothing gets done. We have the best government/justice system that money can buy. I don't expect any remedial action when it comes to corporations and the millionaire/billionaire class.That means Congress would be cutting it's own throat.
The only toy in town is the culture war. The millionaire/billionaire class (Plutocrats, oligarchs whatever you want to call them) use the cudgel of culture to keep it's cult of sycophants in tow.
And that keeps liberals, progressives whatever we call them, on the backfoot, trying to fight two battles at the same time.
Fighting a two front battle is a losing proposition.
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.
Fred Koch made his fortune hurdling oil wells and refineries for Stalin in the 1930's
He evidently was enamored of Stalin and the Soviet Union, that he passed on to his sons, who founded the Libertarian party (David Koch ran for President in 1980 on the Party ticket. That his sons adopted the Soviet Attitude towards gold, which according to the Great Soviet Encylopaedia was pure Marxist.
The USSR was on a 100 gold standard, where 1 ruble equaled. 9871 grams fine gold, and only enough rubles were printed to cover the gold on hand, thus a perpetual depression (shortage of money) which led to a shortage of food and consumer goods and long lines
All of which were disguised as the Soviet response to the cold war.
Additionally, the 1936 (Stalin) Soviet Constitution article 12, says if you don't work, you don't eat (google it), very Libertarian, no such thing as a "welfare" state in the USSR.
The evangelicals will lose the last vestige of our respect also, but they won't be going anywhere either. They will still be tools of the oligarchy. Them being forgiven is all that really matters.
How can they have any Vestige of respect? They are total frauds. I've known this since I was in my teens. There are worse than the Catholic church that I grew up in. They claim to have something to do with God but anyone with half a pee brain knows that their connection is to schadenfreude and right-wing politics.
AS Andrew Jackson said "Justice Marshall has ruled now let him enforce his ruling" and went on to expell the Indians anyway.
Alabama flipped SCOTUS the bird recently, and hardly any mention or follow up in the press or in punditry or in substack.
All it takes is a blue state to give SCOTUS the middle finger. It has no ability to enforce it's rulings, in fact I would wager that if you examined the SCOTUS rulings you would be amazed at the number that are ignored.
Gov Faubus of Arkansas gave the Warren Court the middle Finger in Brown v. Board of Education and Dwight David Eisenhower defied the Posse Commitatus act and deployed the 82nd Airborne to Little Rock to hold back the Arkansas National Guard that was standing in the way of integration.
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 rolled my eyes in disgust when I read Thom’s statement that Barrett’s father and his law firm represented Shell Oil.
I once sat on a plane from Houston to Tampa next to a Shell Oil environmental engineer working on his laptop. I side-eyed his emails and internal memos on how to put a positive spin on the degradation of the Nigerian delta from Shell’s oil fields.
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?
I’d wonder that too, but I think they are so myopic they can’t see past the checkbook register or next quarter’s financials. They really think their money will buy them and their spoiled trust fund kid’s happiness and safety on a self contained island when everything goes to hell. Look no further than Zuckerberg’s compound on Kauai - underground bunker and letting the kids grow food in the garden homestead farm. I can just see daddy Mark taking them to the local 4H or Future Farmers of America meeting.
Then they will build huge domed communities, bigger and better than the beautiful enclosed shopping mall of my youth. It had daylight lighting, a rock cliff with a large waterfall... and that was a half century ago. Imagine what could be built now!’
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.
Julie: As Thom has mentioned more than once. The 1st Chief Justice of the Supreme Court, Marshall, took upon himself the right to determine laws as well as facts, and congress never stepped in and said no. The purpose of the court was never to determine laws, only adjudicate facts.
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: I was thinking of action by a State, not by Congress. Could even be action by an individual or organization though no one would be that ballsy. But California or New York could try it.
The states can and Alabama did, ignore SCOTUS, because the Supreme Court does not have the authority or ability to enforce it's decisions.
My question is this: (Silly me I know the answer)is why hasn't the corporate media made an issue of this, rather than dwell on Trump and E J Carroll, or Trump and Engoron's law clerk.
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.
What I don't understand is why the parties have not filed motions to voir dire some of the justices.
28 U.S. Code § 455 - Disqualification of justice, judge, or magistrate judge
(a)Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his [or her] impartiality might reasonably be questioned.
Daniel, Good question. Might the answer be the parties know the nine members (definitely six) consider themselves of high ethics and incorruptible? Not to mention the fear of a justice’s wrath the next time around.
“What comes around, goes around”. Justice Kavanaugh
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.
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 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!
Not prosecuting the insurrectionists cost the Democratic party the Congress!
Also not using the 14th Amendment on a state by state basis in 2022 on insurrectionist House members.
Even today, there is reticence by Democratic House members to get their unworthy colleagues to establish a record.
I noticed that Daniel. And I have a suspicion why. As George Santos or whatever his real name is, said. They all have dirty laundry, air one and you air them all. Santos is not airing the laundry he knows because he has been warned off, take it or else.
As I've said previously. Enter the Capitol penniless and exit a millionaire., that is why nothing gets done. We have the best government/justice system that money can buy. I don't expect any remedial action when it comes to corporations and the millionaire/billionaire class.That means Congress would be cutting it's own throat.
The only toy in town is the culture war. The millionaire/billionaire class (Plutocrats, oligarchs whatever you want to call them) use the cudgel of culture to keep it's cult of sycophants in tow.
And that keeps liberals, progressives whatever we call them, on the backfoot, trying to fight two battles at the same time.
Fighting a two front battle is a losing proposition.
But I personally know two Democrats in the House. And both are clean, decent people. So not “everyone” is corrupt
Linda I never said that "everyone" is corrupt. Please don't read things into other peoples comments.
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.
Did you Know Bret: That Fred Koch got his bright ideas from Stalin's Russia, the so called USSR.
And of course passed them on to his sons.
I have seen recent references of Fred in regard to the Koch empire. I would like to hear more about the Stalin connection.
Fred Koch made his fortune hurdling oil wells and refineries for Stalin in the 1930's
He evidently was enamored of Stalin and the Soviet Union, that he passed on to his sons, who founded the Libertarian party (David Koch ran for President in 1980 on the Party ticket. That his sons adopted the Soviet Attitude towards gold, which according to the Great Soviet Encylopaedia was pure Marxist.
The USSR was on a 100 gold standard, where 1 ruble equaled. 9871 grams fine gold, and only enough rubles were printed to cover the gold on hand, thus a perpetual depression (shortage of money) which led to a shortage of food and consumer goods and long lines
All of which were disguised as the Soviet response to the cold war.
Additionally, the 1936 (Stalin) Soviet Constitution article 12, says if you don't work, you don't eat (google it), very Libertarian, no such thing as a "welfare" state in the USSR.
Also Stalin made abortion a criminal offense.
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.
The court will lose the last vestige of our respect, but it won’t be going anywhere. It will remain as the tool of the Oligarchs
True. However, I expect dramatic events in the near future so their time is limited IMO.
The evangelicals will lose the last vestige of our respect also, but they won't be going anywhere either. They will still be tools of the oligarchy. Them being forgiven is all that really matters.
I wonder. They may finally take a step too far, even for the right wingers. Goldwater warned us and feared their influence.
How can they have any Vestige of respect? They are total frauds. I've known this since I was in my teens. There are worse than the Catholic church that I grew up in. They claim to have something to do with God but anyone with half a pee brain knows that their connection is to schadenfreude and right-wing politics.
AS Andrew Jackson said "Justice Marshall has ruled now let him enforce his ruling" and went on to expell the Indians anyway.
Alabama flipped SCOTUS the bird recently, and hardly any mention or follow up in the press or in punditry or in substack.
All it takes is a blue state to give SCOTUS the middle finger. It has no ability to enforce it's rulings, in fact I would wager that if you examined the SCOTUS rulings you would be amazed at the number that are ignored.
Gov Faubus of Arkansas gave the Warren Court the middle Finger in Brown v. Board of Education and Dwight David Eisenhower defied the Posse Commitatus act and deployed the 82nd Airborne to Little Rock to hold back the Arkansas National Guard that was standing in the way of integration.
I sure hope you are wrong and I never say that to anybody. I had to make an exception in your case.
We all hope I’m wrong! 🙄
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 rolled my eyes in disgust when I read Thom’s statement that Barrett’s father and his law firm represented Shell Oil.
I once sat on a plane from Houston to Tampa next to a Shell Oil environmental engineer working on his laptop. I side-eyed his emails and internal memos on how to put a positive spin on the degradation of the Nigerian delta from Shell’s oil fields.
I repeat, 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.
I’d wonder that too, but I think they are so myopic they can’t see past the checkbook register or next quarter’s financials. They really think their money will buy them and their spoiled trust fund kid’s happiness and safety on a self contained island when everything goes to hell. Look no further than Zuckerberg’s compound on Kauai - underground bunker and letting the kids grow food in the garden homestead farm. I can just see daddy Mark taking them to the local 4H or Future Farmers of America meeting.
The rich live apart from the polluted areas.
Not for much longer.
Then they will build huge domed communities, bigger and better than the beautiful enclosed shopping mall of my youth. It had daylight lighting, a rock cliff with a large waterfall... and that was a half century ago. Imagine what could be built now!’
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.
That is hard to believe, but it is true!
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.
Julie: As Thom has mentioned more than once. The 1st Chief Justice of the Supreme Court, Marshall, took upon himself the right to determine laws as well as facts, and congress never stepped in and said no. The purpose of the court was never to determine laws, only adjudicate facts.
Thanks, and our lawless nation of republicons and some demos only create chaos and frivolous lawsuits.
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.
The problem is that Republicans in Congress block every effort to reform SCOTUS (like with a code of conduct)...
Thom: I was thinking of action by a State, not by Congress. Could even be action by an individual or organization though no one would be that ballsy. But California or New York could try it.
The states can and Alabama did, ignore SCOTUS, because the Supreme Court does not have the authority or ability to enforce it's decisions.
My question is this: (Silly me I know the answer)is why hasn't the corporate media made an issue of this, rather than dwell on Trump and E J Carroll, or Trump and Engoron's law clerk.