Ongoing discussion of SCOTUS cases (4 Viewers)

[MT15]

With the increased scrutiny due to recent revelations in the press I thought maybe we can use a SCOTUS thread. We can discuss the impending Senate investigation and the legislation proposed today by Murkowski and King in the Senate that will formalize ethical guidelines.

We can also use this thread to highlight cases that possibly don’t deserve their own thread, like the following.

I saw this case today, and I cannot believe the US Government is allowed to do this. Unreasonable search and seizure? The examples he gives in the rest of the thread are just sickening:

 

[LA - L.A.]

I never meant that Biden would do it. I said this makes it likely that some president will do it.

I misunderstood you.

 

[LA - L.A.]

From what I've read in most places, the SCOTUS Chevron ruling only benefits corporations.

Just stop and think about this for a minute. If corporations benefit so much from Chevron, then why have corporations been trying to get it overturned from the very beginning and why is it that it was corporation that just got it overturned?

Corporations only do what's in their best interest. They don't do things that hurt themselves, so if Chevron really was beneficial to corporations, corporations would have left it alone and not constantly challenged it from the very beginning.

Read less and use the common sense you have more.

 

[LA - L.A.]

To that point.



I’ll keep saying it; it can’t be overstated how dire this is.

There's a huge and very important tell in what he said.

His statement reveals the fact that they need us to let them do what they want or they have no chance of succeeding.

He's making a begging threat. He's begging us to let them do what they want and threatening violence if we don't. The key takeaway is they are actually operating from the weaker position and hoping that threats will get us to not use the power we have to stop them. They are hoping thousands of us will quietly march into death camps, metaphorically speaking now but maybe quite literally in the near future, without fighting the dozens of armed guards who have no prayer of holding off the onslaught of thousands of unarmed people.

Let me put it in a more micro, personal level. We teach children to never get in the car with a strange. We teach them if they physically grab you scream and fight to escape like your life depends on it, because it does. If you get pulled into the car, you die, so better to die trying to get free than to passively just let it happen to you.

Never let the fear of possible pain and death herd you into definite pain and death. Fight back. They want you to be docile, so don't give them what they want. If they are going to oppress us make them earn that shirt and make them pay a high price for it. If we fight back, they will not be able to oppress.

How do we fight right now, by making sure everyone you know understand the real consequences of this election. For the overwhelming majority of Americans, the opinions of the people we know have more influence on us than anything else. If Donald Trump wants Biden out of the election, then fight to keep him in. If Trump wants Biden in the election, then get him off the ballot. If they want us to let them do what they want to us without violence from us, then give them every last drop of violence you have in your to defend yourself, the people you love and the people you don't know.

To avoid it resorting to violence, fight like hell with our words everytime they say something make sure everyone knows what they say and how terribly wrong what they're saying is. If someone refuses to listen, don't waste your breath on them. Lost causes are lost causes, move on from them an onto others. On message boards like this, don't try to prove them wrong to themselves, prove them wrong to everybody else. Know that their refusal to discuss honestly and in good faith hurts their cause and helps ours, so happily give them every opportunity to act dishonestly and in bad faith. Hell, lure them into and let them trap and undermine themselves.

Most importantly, speak with people from a consistent place of sincerity and honesty. That is the most powerful tool we have. Even if people don't agree with you, if you're honest and sincere, they will trust and listen to you, and will think about what you said. The most important thing is to get people actually thinking, because when they do, they will start to see the threat in front of us.

 

[Heathen]

Biden Campaign Brushes Off Idea of Reforming the Supreme Court

Biden surrogates brushed off questions about reining in the court, while emphasizing the gravity of a second Trump term.

www.rollingstone.com

 

[Optimus Prime]

The violent attack on Congress on 6 January 2021, and all the ancillary attempts to steal the 2020 election, were a coup attempt led from the executive branch of the federal government with support from Republicans in the legislative branch. 1 July 2024 – this Thursday – was a more successful coup attempt orchestrated by six judges of the judicial branch.

“With fear for our democracy, I dissent,” wrote Justice Sonia Sotomayor in an opinion joined by justices Ketanji Brown Jackson and Elena Kagan, after the US supreme court’s conservative majority ruled that Donald Trump holds “absolute immunity” for “official acts” done while president.

Part of what’s shocking about the state of the union right now is that an entire party and the US supreme court’s conservative majority have abandoned almost everything – the truth, the rule of law, their own legitimacy, their place in history and the fate of the nation – to serve one man.

They could not have picked a more outrageous man to throw their weight and reputations behind – a psychotic clown who’s also an indicted felon found liable in civil court for sexual assault, barred from doing business in New York, a stealer of state secrets, a would-be thief of an election and the instigator of a violent attack on the legislative branch of government and the constitutionally mandated transition of power after an election.

A grifter who in 2016 won a minority victory in a corrupted election – his conviction earlier this year was on charges for one small part of that corruption.

A man who has gloated about seizing dictatorial powers and never letting go and a worshiper of tyrants denounced by dozens of his former cabinet members and senior staffers.……

The US supreme court just completed Trump’s January 6 coup attempt | Rebecca Solnit

The court’s conservative justices have thrown aside the rule of law – and their own legitimacy – to serve one man

www.theguardian.com

 

[SaintForLife]

Ok, now on to Chevron Deference, which the Supreme Court just struck down in a decision released on Friday called Loper Bright. Liberals are spitting mad, calling this the biggest judicial power grab since 1803. Conservatives are joyful, arguing that the balance of power among an overreaching executive branch and legislative branch is now set correctly. What is it? Why does it matter? And did the apocalypse or nirvana just happen?

The debate over Chevron Deference is confusing, not because it’s complicated, but because there are two frames at work, one in good faith and one in bad faith. And both are reasonable lenses through which to see the discussion. The good faith frame is that Chevron is about whether regulators or judges should be able to define what Congress meant by its statutes. This lens requires asking questions about the separation of powers and the role of the judiciary, and empowering expert bodies vs generalist judges. But this framework doesn’t explain the anger and hyperbole. That comes from the bad faith framework, which is whether repealing Chevron is merely a partisan power grab by big business.

Let’s start with what Chevron Deference is. The first time I encountered the concept of Chevron Deference was in the early 2000s, when the Bush administration Federal Communication Commission allowed cable broadband companies like Comcast to monopolize internet access. At the time, there was lots of competition in broadband access, since broadband providers, as telecommunications services, were under the legal obligation to lease out their lines, like how the phone companies had to allow consumers the ability to reach dial-up internet providers like AOL.

In 2002, the Bush FCC claimed that cable broadband wasn’t a telecommunications service, but was more like a newspaper, an ‘information service.’ And so the rules written by Congress in the Communications Act, according to the FCC, didn’t apply. Within a few years, most independent broadband providers were dead. And America, which had led the world in broadband deployment, fell way behind. Of course, advocates sued, and the suit went to the Supreme Court, which had to answer the question: Was the FCC’s action legal? Now, the Supreme Court could have said ‘let’s look at the statute.’ But they didn’t. Instead, Clarence Thomas, writing for the majority in 2005, said that judges have to defer to an administrative agency on any reasonable interpretation of the law. (Scalia, dissenting, said it was absurd to consider a broadband provider anything but a telecommunications service.)

The Brand X decision, as it came to be known, was an expansion of the principle laid down in an earlier decision in 1984, Chevron U.S.A., Inc. v. NRDC. In the early 1980s, the Reagan Environmental Protection Agency, run by Neil Gorsuch’s mother Anne Gorsuch, sought to relax air quality standards, despite the Clean Air Act being ambiguous on whether the EPA could in fact do that on its own authority. Lower courts, stacked with liberals, said Reagan couldn’t just deregulate without Congress rewriting rules. The Supreme Court, however, disagreed, and laid down the administrative principle that Thomas cited twenty one years later.

So in a sense, Chevron Deference was a way for administrations who wanted to get around populist laws and a liberal judiciary to just decree that the laws were no longer in force. But eventually progressive regulators used Chevron as well, much to the irritation of the corporate world. Over the course of the 2000s, for instance, regulators sought to argue that carbon dioxide was an air pollutant under the Clean Air Act, leading to Obama’s 2015 Clean Power Plan, which set EPA limits on carbon emissions. As the judiciary got more conservative, it now seemed foolish to let regulators define the law.

By 2020, Clarence Thomas was regretting his Brand X decision, saying “it is never too late to surrender former views to a better considered position.” In 2022, in West Virginia vs EPA, conservatives on the Supreme Court struck down the Clean Power Plan under a new standard it created called the “Major Questions Doctrine,” which means that any agency action delegated by Congress that involves a lot of money has to be clearly authorized by statute. Then, last week, in a decision by John Roberts, the Supreme Court overruled Chevron, saying that judges defines statutes, not agencies.

In his opinion, Roberts didn’t say that Congress couldn’t delegate rule-making authority to agencies when statutes are ambiguous, just that Congress had to make it clear that it sought such a delegation. Thomas went further, writing a separate opinion saying that any such delegation of rule-writing was unconstitutional.

In other words, from one perspective, despite all the high-minded rhetoric about constitutional separations of power, this fight is a contest about power. At first, big business liked Chevron because it let them deregulate without having to go to Congress or the judiciary and ask them to weaken the Clean Air Act or other popular laws. Then, as they got more and more allies in the judiciary they didn’t like it because Democrats started to use it for the same reason the Republicans had, to get around Congress and a conservative judiciary.

Chevron Deference, however, wasn’t just a mechanism to implement a certain agenda, it was also a value neutral process change to move power from courts to agencies. And it is deeply embedded in policymaking. Since 1984, Congress has passed hundreds if not thousands of laws, under the assumption that agencies implementing those laws had the ability to execute them even if there was ambiguity or the law was silent on a certain detail. And many agencies and courts have built their rule-making and litigation strategies on Chevron Deference, for both significant and insignificant regulations.

On net, I think this decision could be bad, and induce chaos. But first I’ll go over the good news. A lot of people see regulation and government as an unalloyed good, but it is not. Agencies do collude with big business, and when sued, defend themselves with this doctrine. So Chevron doesn’t always protect good rules.

There’s also the fact that the ruling is relatively narrow; Congress can act to make explicit delegations of authority, as Roberts noted. They could actually pass Chevron Deference tomorrow, and put it in statute. Loper Bright also doesn’t really touch the Antitrust Division, or the Federal Trade Commission, as the FTC rarely relies on Chevron Deference. I do think the FTC’s non-compete ban will be struck down, possibly next week, but under a different rationale. Finally, it’s good to force Congress to have more discipline in legislating, the handwaving in writing laws does show a basic disdain for governance.

Now comes the bad news, which is mostly that Roberts has invited chaos in government. Thousands upon thousands of regulations and laws were crafted under the premise that agencies could interpret their statutes themselves and write rules executing them. Now lifetime appointed judges without actual expertise are going to have the chance to rewrite all of them. Roberts has said that judges must now interpret statutes based on an older standard, Skidmore vs Swift. And maybe judges will do a good job, but given the heavy while collar corporate defense tilt of the judiciary, I am concerned.

On a practical level, there’s now really no way to know what the law is across the board. For instance, take a law against unfair foreign subsidies, which instructs the Commerce Department to calculate the subsidy and act based on the amount. Commerce itself has many ways to do so, since subsidies differ for every country and every market, and change all the time. Now it will be possible to sue based on the premise that, say, the statute is silent on how to calculate a particular subsidy given to producers of televisions in China. And a judge can, if he or she desires, totally remake trade policy in that market. That’s kind of crazy, and there are rules like this all over the place where agencies are doing their best to implement Congressional policy.

The bottom line is threefold. First, this decision is about moving power to judges. And judges right now are deferential to corporate power, so moving authority to judges from agencies is on net a bad thing, though I don’t want to overstate this dynamic, since agency bureaucrats are often problematic as well. Second, Loper Bright is part of a broader framework, which is to break the ability of Congress to act, and then kick decisions over to conservative courts. The real response is to get Congress to legislate again. And third, let’s not overstate the impact of this decision. We had an administrative state prior to 1984, and it worked pretty well. By contrast, Bush and Obama had Chevron deference, and the results were bailouts, monopolies, and corruption. Even now, the Biden Department of Justice is unable to change the leadership of Boeing, and that’s for lack of will, not authority.

In other words, this decision isn’t great. And yeah, there’s a lot of bad faith involved. But the hair on fire warnings come from those who admire government bureaucracy, regardless of whether it delivers. So be a bit skeptical on that front.

Monopoly Round-Up: What Is Chevron Deference and How Much Does It Matter?

On Friday the Supreme Court reversed a four decade old precedent used to define how Congressional statutes are enforced. Does this decision matter for monopoly power?

open.substack.com

 

[MT15]

I’m just not exactly sure what they think they’re going to win - certainly when it comes to establishing some kind of Christian theocracy, they’re not going to win.

I think we should assume they can win, and act accordingly. I’m positive people in Iran didn’t think they could return to the type of religious extremism they have now. People said it couldn’t ever happen until it did.

 

[MT15]

Read less and use the common sense you have more.

Man, I have been begging him to do this for years. Literally years.

 

[SaintForLife]

Presidents enjoyed functional immunity from criminal prosecution for "official acts" between 1789 and 2023. Now, the Supreme Court has codified that immunity. This is largely thanks to the Special Counsel purporting to criminalize a massive array of "official" actions undertaken by Trump, such as conferring with Justice Department officials, conferring with the Vice President, and even Tweeting -- under a cockamamie and newly concocted theory designed to specifically prosecute Trump. Given the clear excesses of this literal "conspiracy theory" proposed by Jack Smith, the Court has accordingly formalized a wide-ranging immunity for all presidents, even for future "official acts" which might be more narrow and concrete, and related to more straightforwardly "unlawful" conduct.

So if the President has now been accorded King-like immunities for his "core Constitutional" acts, as well as far-reaching "presumptive immunity" for his "official" acts, the reason for this new monarchical standard ultimately stems from the heedless crusade of Jack Smith and the DOJ

 

[MT15]

Ok, now on to Chevron Deference, which the Supreme Court just struck down in a decision released on Friday called Loper Bright. Liberals are spitting mad, calling this the biggest judicial power grab since 1803. Conservatives are joyful, arguing that the balance of power among an overreaching executive branch and legislative branch is now set correctly. What is it? Why does it matter? And did the apocalypse or nirvana just happen?

The debate over Chevron Deference is confusing, not because it’s complicated, but because there are two frames at work, one in good faith and one in bad faith. And both are reasonable lenses through which to see the discussion. The good faith frame is that Chevron is about whether regulators or judges should be able to define what Congress meant by its statutes. This lens requires asking questions about the separation of powers and the role of the judiciary, and empowering expert bodies vs generalist judges. But this framework doesn’t explain the anger and hyperbole. That comes from the bad faith framework, which is whether repealing Chevron is merely a partisan power grab by big business.

Let’s start with what Chevron Deference is. The first time I encountered the concept of Chevron Deference was in the early 2000s, when the Bush administration Federal Communication Commission allowed cable broadband companies like Comcast to monopolize internet access. At the time, there was lots of competition in broadband access, since broadband providers, as telecommunications services, were under the legal obligation to lease out their lines, like how the phone companies had to allow consumers the ability to reach dial-up internet providers like AOL.

In 2002, the Bush FCC claimed that cable broadband wasn’t a telecommunications service, but was more like a newspaper, an ‘information service.’ And so the rules written by Congress in the Communications Act, according to the FCC, didn’t apply. Within a few years, most independent broadband providers were dead. And America, which had led the world in broadband deployment, fell way behind. Of course, advocates sued, and the suit went to the Supreme Court, which had to answer the question: Was the FCC’s action legal? Now, the Supreme Court could have said ‘let’s look at the statute.’ But they didn’t. Instead, Clarence Thomas, writing for the majority in 2005, said that judges have to defer to an administrative agency on any reasonable interpretation of the law. (Scalia, dissenting, said it was absurd to consider a broadband provider anything but a telecommunications service.)

The Brand X decision, as it came to be known, was an expansion of the principle laid down in an earlier decision in 1984, Chevron U.S.A., Inc. v. NRDC. In the early 1980s, the Reagan Environmental Protection Agency, run by Neil Gorsuch’s mother Anne Gorsuch, sought to relax air quality standards, despite the Clean Air Act being ambiguous on whether the EPA could in fact do that on its own authority. Lower courts, stacked with liberals, said Reagan couldn’t just deregulate without Congress rewriting rules. The Supreme Court, however, disagreed, and laid down the administrative principle that Thomas cited twenty one years later.

So in a sense, Chevron Deference was a way for administrations who wanted to get around populist laws and a liberal judiciary to just decree that the laws were no longer in force. But eventually progressive regulators used Chevron as well, much to the irritation of the corporate world. Over the course of the 2000s, for instance, regulators sought to argue that carbon dioxide was an air pollutant under the Clean Air Act, leading to Obama’s 2015 Clean Power Plan, which set EPA limits on carbon emissions. As the judiciary got more conservative, it now seemed foolish to let regulators define the law.

By 2020, Clarence Thomas was regretting his Brand X decision, saying “it is never too late to surrender former views to a better considered position.” In 2022, in West Virginia vs EPA, conservatives on the Supreme Court struck down the Clean Power Plan under a new standard it created called the “Major Questions Doctrine,” which means that any agency action delegated by Congress that involves a lot of money has to be clearly authorized by statute. Then, last week, in a decision by John Roberts, the Supreme Court overruled Chevron, saying that judges defines statutes, not agencies.

In his opinion, Roberts didn’t say that Congress couldn’t delegate rule-making authority to agencies when statutes are ambiguous, just that Congress had to make it clear that it sought such a delegation. Thomas went further, writing a separate opinion saying that any such delegation of rule-writing was unconstitutional.

In other words, from one perspective, despite all the high-minded rhetoric about constitutional separations of power, this fight is a contest about power. At first, big business liked Chevron because it let them deregulate without having to go to Congress or the judiciary and ask them to weaken the Clean Air Act or other popular laws. Then, as they got more and more allies in the judiciary they didn’t like it because Democrats started to use it for the same reason the Republicans had, to get around Congress and a conservative judiciary.

Chevron Deference, however, wasn’t just a mechanism to implement a certain agenda, it was also a value neutral process change to move power from courts to agencies. And it is deeply embedded in policymaking. Since 1984, Congress has passed hundreds if not thousands of laws, under the assumption that agencies implementing those laws had the ability to execute them even if there was ambiguity or the law was silent on a certain detail. And many agencies and courts have built their rule-making and litigation strategies on Chevron Deference, for both significant and insignificant regulations.

On net, I think this decision could be bad, and induce chaos. But first I’ll go over the good news. A lot of people see regulation and government as an unalloyed good, but it is not. Agencies do collude with big business, and when sued, defend themselves with this doctrine. So Chevron doesn’t always protect good rules.

There’s also the fact that the ruling is relatively narrow; Congress can act to make explicit delegations of authority, as Roberts noted. They could actually pass Chevron Deference tomorrow, and put it in statute. Loper Bright also doesn’t really touch the Antitrust Division, or the Federal Trade Commission, as the FTC rarely relies on Chevron Deference. I do think the FTC’s non-compete ban will be struck down, possibly next week, but under a different rationale. Finally, it’s good to force Congress to have more discipline in legislating, the handwaving in writing laws does show a basic disdain for governance.

Now comes the bad news, which is mostly that Roberts has invited chaos in government. Thousands upon thousands of regulations and laws were crafted under the premise that agencies could interpret their statutes themselves and write rules executing them. Now lifetime appointed judges without actual expertise are going to have the chance to rewrite all of them. Roberts has said that judges must now interpret statutes based on an older standard, Skidmore vs Swift. And maybe judges will do a good job, but given the heavy while collar corporate defense tilt of the judiciary, I am concerned.

On a practical level, there’s now really no way to know what the law is across the board. For instance, take a law against unfair foreign subsidies, which instructs the Commerce Department to calculate the subsidy and act based on the amount. Commerce itself has many ways to do so, since subsidies differ for every country and every market, and change all the time. Now it will be possible to sue based on the premise that, say, the statute is silent on how to calculate a particular subsidy given to producers of televisions in China. And a judge can, if he or she desires, totally remake trade policy in that market. That’s kind of crazy, and there are rules like this all over the place where agencies are doing their best to implement Congressional policy.

The bottom line is threefold. First, this decision is about moving power to judges. And judges right now are deferential to corporate power, so moving authority to judges from agencies is on net a bad thing, though I don’t want to overstate this dynamic, since agency bureaucrats are often problematic as well. Second, Loper Bright is part of a broader framework, which is to break the ability of Congress to act, and then kick decisions over to conservative courts. The real response is to get Congress to legislate again. And third, let’s not overstate the impact of this decision. We had an administrative state prior to 1984, and it worked pretty well. By contrast, Bush and Obama had Chevron deference, and the results were bailouts, monopolies, and corruption. Even now, the Biden Department of Justice is unable to change the leadership of Boeing, and that’s for lack of will, not authority.

In other words, this decision isn’t great. And yeah, there’s a lot of bad faith involved. But the hair on fire warnings come from those who admire government bureaucracy, regardless of whether it delivers. So be a bit skeptical on that front.

Monopoly Round-Up: What Is Chevron Deference and How Much Does It Matter?

On Friday the Supreme Court reversed a four decade old precedent used to define how Congressional statutes are enforced. Does this decision matter for monopoly power?

open.substack.com

Did you read more than the paragraph you underlined? This is a bad decision - not great - according to this writer. This decision kicks authority from agencies to courts, because congress has proved itself unable to act. Courts are now tilted toward deference to corporations. Judges who have no expertise are going to be asked to rewrite thousands upon thousands of laws and regulations. This isn’t good - not at all. It just injects chaos into a very turbulent time in this country. This entire paragraph is restating what your article says.

His main quibble is that he thinks some people are exaggerating the consequences, but I guess we will find out. He seems to think Congress will respond by legislating things properly. I think that’s pie-in-the-sky optimism. I don’t see Congress getting its head out of its arse anytime soon. Do you?

This is at least a decent article. It doesn’t prove what you said - that the decision to overturn Chevron is a good thing - at all. But it is at least a decent discussion.

 

[MT15]

SFL: So what about trying to overturn an election a president just lost is an “official act”? Pressuring state officials to “find” votes that don’t exist? Is that an official act? Making fake slates of electors and submitting them, and pressuring Pence to recognize them is an official act?

Why do you hate America? Why do you want a criminal who tried to overturn a valid election to have power again when he is clearly morally incapable of doing the right thing?

You went from posting a decent article to posting from a complete idiot without missing a beat.

 

[zztop]

Judges who have no expertise are going to be asked to rewrite thousands upon thousands of laws and regulations.

Yeah, this is the insane part. Instead of deferring to people who studied in specific scientific fields, it will be the clueless judges to decide.

 

[Incumbent]

His main quibble is that he thinks some people are exaggerating the consequences, but I guess we will find out. He seems to think Congress will respond by legislating things properly. I think that’s pie-in-the-sky optimism. I don’t see Congress getting its head out of its arse anytime soon. Do you?

It's absolutely pie-in-the-sky optimism, given that who holds the majority determines where congress stands on many important issues that directly relate to the very industries bribing lawmakers through lobbying.

 

[DaveXA]

Ok, now on to Chevron Deference, which the Supreme Court just struck down in a decision released on Friday called Loper Bright. Liberals are spitting mad, calling this the biggest judicial power grab since 1803. Conservatives are joyful, arguing that the balance of power among an overreaching executive branch and legislative branch is now set correctly. What is it? Why does it matter? And did the apocalypse or nirvana just happen?

The debate over Chevron Deference is confusing, not because it’s complicated, but because there are two frames at work, one in good faith and one in bad faith. And both are reasonable lenses through which to see the discussion. The good faith frame is that Chevron is about whether regulators or judges should be able to define what Congress meant by its statutes. This lens requires asking questions about the separation of powers and the role of the judiciary, and empowering expert bodies vs generalist judges. But this framework doesn’t explain the anger and hyperbole. That comes from the bad faith framework, which is whether repealing Chevron is merely a partisan power grab by big business.

Let’s start with what Chevron Deference is. The first time I encountered the concept of Chevron Deference was in the early 2000s, when the Bush administration Federal Communication Commission allowed cable broadband companies like Comcast to monopolize internet access. At the time, there was lots of competition in broadband access, since broadband providers, as telecommunications services, were under the legal obligation to lease out their lines, like how the phone companies had to allow consumers the ability to reach dial-up internet providers like AOL.

In 2002, the Bush FCC claimed that cable broadband wasn’t a telecommunications service, but was more like a newspaper, an ‘information service.’ And so the rules written by Congress in the Communications Act, according to the FCC, didn’t apply. Within a few years, most independent broadband providers were dead. And America, which had led the world in broadband deployment, fell way behind. Of course, advocates sued, and the suit went to the Supreme Court, which had to answer the question: Was the FCC’s action legal? Now, the Supreme Court could have said ‘let’s look at the statute.’ But they didn’t. Instead, Clarence Thomas, writing for the majority in 2005, said that judges have to defer to an administrative agency on any reasonable interpretation of the law. (Scalia, dissenting, said it was absurd to consider a broadband provider anything but a telecommunications service.)

The Brand X decision, as it came to be known, was an expansion of the principle laid down in an earlier decision in 1984, Chevron U.S.A., Inc. v. NRDC. In the early 1980s, the Reagan Environmental Protection Agency, run by Neil Gorsuch’s mother Anne Gorsuch, sought to relax air quality standards, despite the Clean Air Act being ambiguous on whether the EPA could in fact do that on its own authority. Lower courts, stacked with liberals, said Reagan couldn’t just deregulate without Congress rewriting rules. The Supreme Court, however, disagreed, and laid down the administrative principle that Thomas cited twenty one years later.

So in a sense, Chevron Deference was a way for administrations who wanted to get around populist laws and a liberal judiciary to just decree that the laws were no longer in force. But eventually progressive regulators used Chevron as well, much to the irritation of the corporate world. Over the course of the 2000s, for instance, regulators sought to argue that carbon dioxide was an air pollutant under the Clean Air Act, leading to Obama’s 2015 Clean Power Plan, which set EPA limits on carbon emissions. As the judiciary got more conservative, it now seemed foolish to let regulators define the law.

By 2020, Clarence Thomas was regretting his Brand X decision, saying “it is never too late to surrender former views to a better considered position.” In 2022, in West Virginia vs EPA, conservatives on the Supreme Court struck down the Clean Power Plan under a new standard it created called the “Major Questions Doctrine,” which means that any agency action delegated by Congress that involves a lot of money has to be clearly authorized by statute. Then, last week, in a decision by John Roberts, the Supreme Court overruled Chevron, saying that judges defines statutes, not agencies.

In his opinion, Roberts didn’t say that Congress couldn’t delegate rule-making authority to agencies when statutes are ambiguous, just that Congress had to make it clear that it sought such a delegation. Thomas went further, writing a separate opinion saying that any such delegation of rule-writing was unconstitutional.

In other words, from one perspective, despite all the high-minded rhetoric about constitutional separations of power, this fight is a contest about power. At first, big business liked Chevron because it let them deregulate without having to go to Congress or the judiciary and ask them to weaken the Clean Air Act or other popular laws. Then, as they got more and more allies in the judiciary they didn’t like it because Democrats started to use it for the same reason the Republicans had, to get around Congress and a conservative judiciary.

Chevron Deference, however, wasn’t just a mechanism to implement a certain agenda, it was also a value neutral process change to move power from courts to agencies. And it is deeply embedded in policymaking. Since 1984, Congress has passed hundreds if not thousands of laws, under the assumption that agencies implementing those laws had the ability to execute them even if there was ambiguity or the law was silent on a certain detail. And many agencies and courts have built their rule-making and litigation strategies on Chevron Deference, for both significant and insignificant regulations.

On net, I think this decision could be bad, and induce chaos. But first I’ll go over the good news. A lot of people see regulation and government as an unalloyed good, but it is not. Agencies do collude with big business, and when sued, defend themselves with this doctrine. So Chevron doesn’t always protect good rules.

There’s also the fact that the ruling is relatively narrow; Congress can act to make explicit delegations of authority, as Roberts noted. They could actually pass Chevron Deference tomorrow, and put it in statute. Loper Bright also doesn’t really touch the Antitrust Division, or the Federal Trade Commission, as the FTC rarely relies on Chevron Deference. I do think the FTC’s non-compete ban will be struck down, possibly next week, but under a different rationale. Finally, it’s good to force Congress to have more discipline in legislating, the handwaving in writing laws does show a basic disdain for governance.

Now comes the bad news, which is mostly that Roberts has invited chaos in government. Thousands upon thousands of regulations and laws were crafted under the premise that agencies could interpret their statutes themselves and write rules executing them. Now lifetime appointed judges without actual expertise are going to have the chance to rewrite all of them. Roberts has said that judges must now interpret statutes based on an older standard, Skidmore vs Swift. And maybe judges will do a good job, but given the heavy while collar corporate defense tilt of the judiciary, I am concerned.

On a practical level, there’s now really no way to know what the law is across the board. For instance, take a law against unfair foreign subsidies, which instructs the Commerce Department to calculate the subsidy and act based on the amount. Commerce itself has many ways to do so, since subsidies differ for every country and every market, and change all the time. Now it will be possible to sue based on the premise that, say, the statute is silent on how to calculate a particular subsidy given to producers of televisions in China. And a judge can, if he or she desires, totally remake trade policy in that market. That’s kind of crazy, and there are rules like this all over the place where agencies are doing their best to implement Congressional policy.

The bottom line is threefold. First, this decision is about moving power to judges. And judges right now are deferential to corporate power, so moving authority to judges from agencies is on net a bad thing, though I don’t want to overstate this dynamic, since agency bureaucrats are often problematic as well. Second, Loper Bright is part of a broader framework, which is to break the ability of Congress to act, and then kick decisions over to conservative courts. The real response is to get Congress to legislate again. And third, let’s not overstate the impact of this decision. We had an administrative state prior to 1984, and it worked pretty well. By contrast, Bush and Obama had Chevron deference, and the results were bailouts, monopolies, and corruption. Even now, the Biden Department of Justice is unable to change the leadership of Boeing, and that’s for lack of will, not authority.

In other words, this decision isn’t great. And yeah, there’s a lot of bad faith involved. But the hair on fire warnings come from those who admire government bureaucracy, regardless of whether it delivers. So be a bit skeptical on that front.

Monopoly Round-Up: What Is Chevron Deference and How Much Does It Matter?

On Friday the Supreme Court reversed a four decade old precedent used to define how Congressional statutes are enforced. Does this decision matter for monopoly power?

open.substack.com

Inrats

 

[superchuck500]

If the president says I"m killing my political rival, yeah that wouldn't fly.

But what if the president says, that person over there is an imminent national security threat and must be neutralized, so neutralize him? That has been done as an official act and legal precedent says the president has the authority to conduct that official act.

The ruling says that intentions can not be considered in deciding if it's an official act and violation of a law does not make something not an official act.

If you were president, then of course you wouldn't do this because you know it's wrong. But presidents have done this and they have been supported by the courts as having this authority.

So, even though you know and I know that the president was really just killing a political rival, the ruling says that the courts can not take the intention in to consideration. As long as what the president does looks like an official act that presidents have, then the president has immunity for that official act, regardless of actual intention or the illegal nature of what they did.

You're a good person who operates in good faith. I think you are making the same mistake that I often make and will make in the future. Because we are good guys who operate in good faith, our natural assumption is so is everyone else, especially someone who has been appointed to the Supreme Court. I also think because you are in the legal profession and have a lot of respect and trust in it, that may make it even harder for you to even consider that Supreme Court justices might be mostly corrupt and acting in bad faith. Something like that could create a lot of professional and personal doubt.

I hope you are correct, but I don't think you are. I think you're analysis is built on the assumption that everyone is acting in good faith and I think there's years of reasonable evidence that creates reasonable and serious doubts that they actually are acting in good faith.

I understand your point entirely - and I see how you can come to that conclusion. And there's plenty of support for it and I agree that Trump exemplifies that we cannot always expect the president to act in the interest of the nation and the Constitution despite his oath to God.

But in trying to parse out what the Trump v. US holding means with hypotheticals, I think it's important to place them in as much reality as we can. So here, the hypothetical is that Trump orders the assassination of a political rival (an American citizen living and operating on US soil) - and then alleges that the person was some kind of terror or security threat.

This is easy to say, but it's actually an extraordinarily complicated scenario. First, it's important to note that this would likely be murder under both federal and a state law. Again, immunity is a defense to prosecution and it doesn't mean that the criminal law that defines the conduct as a crime doesn't exist - it is still a crime even if the perpetrator is immune from prosecution. As to immunity, if the president killed the opponent himself - like lets say he pulls a gun out at the debate and shoots him - then we go straight to the legal analysis section under Trump v. US.

If, instead and more likely, he orders some federal unit to kill the opponent, that order is unquestionably unlawful: the United States has law regarding the use of deadly force by its agents. For example, even with the killing of Osama bin Laden, a known and ongoing threat to the United States in the form of a foreign terror leader operating outside of the United States, the Obama administration's lawyers prepared for the president a justification of the use of deadly force, valid under U.S. law. And in the case of the killing of Nasser Al-Aulaqi, a U.S. citizen working with Al Qaeda in Yemen, the government prepared a justification but still had to defend the action in court as the first time the US had ever pre-authorized the killing of a U.S. citizen without any trial, indictment, or due process.

Without such a justification, those federal units ordered to carry out the killing are on firm ground to refuse it and I think we'd be talking about a scenario where some fanatic of the president agrees to do it despite the compelling legal jeopardy they would face as they would not have immunity.

But as to immunity for the president, first, we know that it is effectively impossible for a sitting president to be prosecuted for a crime. There are structural impossibilities for a federal prosecution of the chief executive and federal supremacy makes it impossible to imagine that a state court could exercise criminal jurisdiction over a sitting president. And none of this has anything to do with the Trump v. US ruling.

So the question then becomes what happens when that president is no longer president (either by impeachment or because his term ends)? I think it's a misreading of the Trump case that the factual context is irrelevant to the question of official duty. While the Court ruled that the president's motive cannot be considered, that doesn't mean that the facts cannot be considered when determining whether the conduct was within the sphere of an official duty. In other words, I don't think the analysis simply accepts the president's characterization of the conduct - the president can't kill a rival and say "oh that was because he was a terrorist." The analysis can consider the factual context to determine whether it was or was not a function of the president's official duties. The killing of an American politician is not within the president's duties and I don't think that simply alleging that the killing was a function of the president's national security power would ever be persuasive without some factual demonstration that it was plausibly within that authority. But given that the US government has never carried out such a killing (the president ordering the killing of a US citizen on US soil that wasn't the result of a justified use-of-force situation in that specific moment), I think that's simply a bridge too far - even with the broad immunity described in the ruling.

But again, to even get to the point where the ex-president is then asserting immunity from a criminal murder prosecution for killing a political rival, the United States would be in absolute turmoil. And I don't think the Trump immunity decision is all that big of a factor in that scenario. It certainly wouldn't give any president a fair basis to think they could indeed murder their political rival with impunity - I just don't think it does that.

 

[superchuck500]

Just stop and think about this for a minute. If corporations benefit so much from Chevron, then why have corporations been trying to get it overturned from the very beginning and why is it that it was corporation that just got it overturned?

Corporations only do what's in their best interest. They don't do things that hurt themselves, so if Chevron really was beneficial to corporations, corporations would have left it alone and not constantly challenged it from the very beginning.

Read less and use the common sense you have more.

I think he's saying the "Chevron ruling" only benefits corporations - in other words, the ruling that Chevron isn't the standard anymore. Not that Chevron, when it was the rule, was beneficial to corporations.

I don't think it's a true characterization that removing the Chevron standard only benefits corporations, I'm just saying that's how I read the post.

 

[UriUT]

I understand your point entirely - and I see how you can come to that conclusion. And there's plenty of support for it and I agree that Trump exemplifies that we cannot always expect the president to act in the interest of the nation and the Constitution despite his oath to God.

But in trying to parse out what the Trump v. US holding means with hypotheticals, I think it's important to place them in as much reality as we can. So here, the hypothetical is that Trump orders the assassination of a political rival (an American citizen living and operating on US soil) - and then alleges that the person was some kind of terror or security threat.

This is easy to say, but it's actually an extraordinarily complicated scenario. First, it's important to note that this would likely be murder under both federal and a state law. Again, immunity is a defense to prosecution and it doesn't mean that the criminal law that defines the conduct as a crime doesn't exist - it is still a crime even if the perpetrator is immune from prosecution. As to immunity, if the president killed the opponent himself - like lets say he pulls a gun out at the debate and shoots him - then we go straight to the legal analysis section under Trump v. US.

If, instead and more likely, he orders some federal unit to kill the opponent, that order is unquestionably unlawful: the United States has law regarding the use of deadly force by its agents. For example, even with the killing of Osama bin Laden, a known and ongoing threat to the United States in the form of a foreign terror leader operating outside of the United States, the Obama administration's lawyers prepared for the president a justification of the use of deadly force, valid under U.S. law. And in the case of the killing of Nasser Al-Aulaqi, a U.S. citizen working with Al Qaeda in Yemen, the government prepared a justification but still had to defend the action in court as the first time the US had ever pre-authorized the killing of a U.S. citizen without any trial, indictment, or due process.

Without such a justification, those federal units ordered to carry out the killing are on firm ground to refuse it and I think we'd be talking about a scenario where some fanatic of the president agrees to do it despite the compelling legal jeopardy they would face as they would not have immunity.

But as to immunity for the president, first, we know that it is effectively impossible for a sitting president to be prosecuted for a crime. There are structural impossibilities for a federal prosecution of the chief executive and federal supremacy makes it impossible to imagine that a state court could exercise criminal jurisdiction over a sitting president. And none of this has anything to do with the Trump v. US ruling.

So the question then becomes what happens when that president is no longer president (either by impeachment or because his term ends)? I think it's a misreading of the Trump case that the factual context is irrelevant to the question of official duty. While the Court ruled that the president's motive cannot be considered, that doesn't mean that the facts cannot be considered when determining whether the conduct was within the sphere of an official duty. In other words, I don't think the analysis simply accepts the president's characterization of the conduct - the president can't kill a rival and say "oh that was because he was a terrorist." The analysis can consider the factual context to determine whether it was or was not a function of the president's official duties. The killing of an American politician is not within the president's duties and I don't think that simply alleging that the killing was a function of the president's national security power would ever be persuasive without some factual demonstration that it was plausibly within that authority. But given that the US government has never carried out such a killing (the president ordering the killing of a US citizen on US soil that wasn't the result of a justified use-of-force situation in that specific moment), I think that's simply a bridge too far - even with the broad immunity described in the ruling.

But again, to even get to the point where the ex-president is then asserting immunity from a criminal murder prosecution for killing a political rival, the United States would be in absolute turmoil. And I don't think the Trump immunity decision is all that big of a factor in that scenario. It certainly wouldn't give any president a fair basis to think they could indeed murder their political rival with impunity - I just don't think it does that.

We already have an example where intent is necessary decipher official vs unofficial acts. His first impeachment was a question of whether he used the office to further his political gains. Much like watergate. I’ve only skimmed the posts thus far, and I believe you think that isn’t an official act. With trump’s case, he is allowed to negotiate, and even blackmail other governments to further us interests. However, because of what we know from testimonies, he used what should be official acts for his own personal gain contrary to us interests. I just don’t see how without examining intent we can answer that question, and many others without intent. This decision hampers the guardrails, and whether you believe it improbable or not, trump has pushed the boundaries and republicans are weak or even supporting him.

 

[superchuck500]

We already have an example where intent is necessary decipher official vs unofficial acts. His first impeachment was a question of whether he used the office to further his political gains. Much like watergate. I’ve only skimmed the posts thus far, and I believe you think that isn’t an official act. With trump’s case, he is allowed to negotiate, and even blackmail other governments to further us interests. However, because of what we know from testimonies, he used what should be official acts for his own personal gain contrary to us interests. I just don’t see how without examining intent we can answer that question, and many others without intent. This decision hampers the guardrails, and whether you believe it improbable or not, trump has pushed the boundaries and republicans are weak or even supporting him.

I do think it’s an official act - foreign relations with foreign governments is one of the core constitutional duties of the president.

I don’t think there’s any ambiguity about that. The proper recourse was impeachment.