#Chevron deference

[bemusedlybespectacled]

I don't understand the chevron law thing, could you explain it like I'm five? Should we be working towards fixing whatever the courts just fucked up?

So, okay, I am condensing like a semester of a class I took in 2017 into a very short explanation, but:

It would be really annoying for Congress to individually pass laws approving every new medicine or listing out every single poison you can't have in tap water, so instead there are agencies created by Congress, via a law, to handle a specific thing. The agencies are created by Congress but overseen by the executive branch (so, the president), which is why we say things like "Reagan's EPA" or "Biden's DOJ" - even though Congress creates them, the president determines how they do the thing Congress wants them to do, by passing regulations like "you can't dump cyanide in the local swimming pool" and "no, you can't dump strychnine, either."

However, sometimes people will oppose these regulations by saying that the agency is going beyond the task they were given by Congress. "The Clean Air Act only bans 'pollutants,' and nowhere in the law does it say that 'pollutants' includes arsenic! You're going beyond your mandate!" To which the experts at the EPA would be like, "We, the experts at the EPA, have decided arsenic is a pollutant." On the flip side, the EPA could be like, "We, the experts at the EPA, have decided that arsenic isn't a pollutant," and people would oppose that regulation by being like, "But the Clean Air Act bans 'pollutants,' and it's insane to say that arsenic isn't a pollutant!" So whose interpretation is correct, the government's or the challengers'?

Chevron deference basically put heavy weight onto how the agency (i.e. the government) interpreted the law, with the assumption that the agency was in the right and needing pretty strong evidence that they were interpreting it wrong (like, blatantly doing the opposite of a clear part of the law or something). If there was any ambiguity in how the law was written, you'd defer to the agency's interpretation, even if that interpretation was different depending on who was president at the time.

(Note: there are other ways of challenging regulations other than this one, like saying that they were promulgated in a way that is "arbitrary and capricious" – basically, not backed by any evidence/reasoning other than "we want it." Lots of Trump-era regulations got smacked with this one, though I think they'd be better at it if Trump gets a second term, since they've now had practice.)

Chevron deference wasn't all good – remember that the sword cuts both ways, including when dickholes are in power – but it was a very standard part of the law. Like, any opposition to a regulation would have some citation to be like "Chevron doesn't apply here" and every defense would be like "Chevron absolutely applies here" and most of the time, the agency would win. Like, it was a fundamental aspect of law since the 80s.

The Supreme Court decision basically tosses that out, and says, "In a situation where the law is ambiguous, the court decides what it means." That's not completely insane – interpreting law is a thing judges normally do – but in a situation where the interpretation may hinge on something very complicated outside of the judge's wheelhouse, you now cannot be like, "Your Honor, I promise you that the experts at NOAA know a lot about the weather and made this decision for a good reason."

The main reason it's a problem is that it allows judges to override agencies' judgements about what you should do about a thing and what things you should be working on in the first place. However, I don't think there's really a way of enshrining that into law, outside of maybe adding something to the Administrative Procedure Act, and that would require a Congress that isn't majority Republican.

I will say that kind of I expected this to happen, just because IIRC Gorsuch in particular hates Chevron deference. IMO it's a classic case of "rules for me but not for thee" – Scalia and other conservatives used to rely on Chevron because they wanted their presidents to hold a ton of unchecked power (except for the EPA), but now that we've had Obama and Biden, now conservatives don't like Chevron because it gives the presidents they don't like unchecked power.

[inter-volve]

[odinsblog]

Elena Kagan issued a devastating dissent to the decision of her hard-right fellow supreme court justices to overturn the Chevron doctrine that has been a cornerstone of federal regulation for 40 years, accusing the majority of turning itself into “the country’s administrative czar”.

Kagan said that in one fell swoop, the rightwing majority had snatched the ability to make complex decisions over regulatory matters away from federal agencies and awarded the power to themselves.

“As if it did not have enough on its plate, the majority turns itself into the country’s administrative czar,” she wrote.

For 40 years, she wrote, the Chevron doctrine, set out by the same supreme court in a 1984 ruling, had supported regulatory efforts by the US government by granting federal experts the ability to make reasonable decisions where congressional law was ambiguous. She gave a few examples of the work that was facilitated as a result, such as “keeping air and water clean, food and drugs safe, and financial markets honest”.

Now, the hard-right supermajority had flipped that on its head.

Instead of federal experts adjudicating on all manner of intricate scientific and technical questions – such as addressing the climate crisis, deciding on the country’s healthcare system or controlling AI – now judges would make those critical calls.

Kagan, displaying no desire to pull her punches, portrayed Friday’s ruling as a blatant power grab by the chief justice, John Roberts, and his five ultra-right peers, three of whom were appointed by Trump – Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.

“A rule of judicial humility gives way to a rule of judicial hubris,” she wrote.

Not for the first time, her most caustic comments relate to stare decisis – the adherence to legal precedent that is the foundation stone of the rule of law. Respect for the previous judgments of the supreme court is a reminder to judges that “wisdom often lies in what prior judges have done. It is a brake on the urge to convert every new judge’s opinion into a new legal rule or regime.”

By contrast, she went on: “It is impossible to pretend that today’s decision is a one-off, in its treatment of precedent.”

It has become an unquestionable pattern: the new hard-right supermajority has a fondness for tearing up their own court’s precedents stretching back decades. They did it when they eviscerated the right to an abortion in 2022, upending 50 years of settled law; they did it again last year when they prohibited affirmative action in university admissions, casting out 40 years of legal precedent; and now they’ve done it once more after 40 years to Chevron.

“Just my own defenses of stare decisis, my own dissents to this court’s reversals of settled law, by now fill a small volume,” Kagan said, her final words as plaintive as they were defiant.

(continue reading)

[nonenosome2]

Democratic bill seeks to reverse Supreme Court ruling on federal agency power

"Giant corporations are using far-right, unelected judges to hijack our government and undermine the will of Congress,” Warren said in a statement Tuesday.

So NOT allowing unlimited power to be held by unelected bureaucrats and requiring Congress to NOT be vague when creating agency rules, which are then used to create laws, is somehow a BAD thing?

[dreaminginthedeepsouth]

Supreme Court poised to appoint federal judges to run the US economy.

January 18, 2024

ROBERT B. HUBBELL

JAN 17, 2024

The Supreme Court heard oral argument on two cases that provide the Court with the opportunity to overturn the “Chevron deference doctrine.” Based on comments from the Justices, it seems likely that the justices will overturn judicial precedent that has been settled for forty years. If they do, their decision will reshape the balance of power between the three branches of government by appointing federal judges as regulators of the world’s largest economy, supplanting the expertise of federal agencies (a.k.a. the “administrative state”).

Although the Chevron doctrine seems like an arcane area of the law, it strikes at the heart of the US economy. If the Court were to invalidate the doctrine, it would do so in service of the conservative billionaires who have bought and paid for four of the justices on the Court. The losers would be the American people, who rely on the expertise of federal regulators to protect their water, food, working conditions, financial systems, public markets, transportation, product safety, health care services, and more.

The potential overruling of the Chevron doctrine is a proxy for a broader effort by the reactionary majority to pare the power of the executive branch and Congress while empowering the courts. Let’s take a moment to examine the context of that effort.

But I will not bury the lead (or the lede): The reactionary majority on the Court is out of control. In disregarding precedent that conflicts with the conservative legal agenda of its Federalist Society overlords, the Court is acting in a lawless manner. It is squandering hard-earned legitimacy. It is time to expand the Court—the only solution that requires a simple majority in two chambers of Congress and the signature of the president.

The “administrative state” sounds bad. Is it?

No. The administrative state is good. It refers to the collective body of federal employees, regulators, and experts who help maintain an orderly US economy. Conservatives use the term “administrative state” to denigrate federal regulation and expertise. They want corporations to operate free of all federal restraint—free to pollute, free to defraud, free to impose dangerous and unfair working conditions, free to release dangerous products into the marketplace, and free to engage in deceptive practices in public markets.

The US economy is the largest, most robust economy in the world because federal regulators impose standards for safety, honesty, transparency, and accountability. Not only is the US economy the largest in the world (as measured by nominal GDP), but its GDP per capita ($76,398) overshadows that of the second largest economy, China ($12,270). The US dollar is the reserve currency for the world and its markets are a haven for foreign investment and capital formation. See The Top 25 Economies in the World (investopedia.com)

US consumers, banks, investment firms, and foreign investors are attracted to the US economy because it is regulated. US corporations want all the benefits of regulations—until regulations get in the way of making more money. It is at that point that the “administrative state” is seen as “the enemy” by conservatives who value profit maximization above human health, safety, and solvency.

It is difficult to comprehend how big the US economy is. To paraphrase Douglas Adams’s quote about space, “It’s big. Really big. You just won't believe how vastly, hugely, mindbogglingly big it is.” Suffice to say, the US economy is so big it cannot be regulated by several hundred federal judges with dockets filled with criminal cases and major business disputes.

Nor can Congress pass enough legislation to keep pace with ever changing technological and financial developments. Congress can’t pass a budget on time; the notion that it would be able to keep up with regulations necessary to regulate Bitcoin trading in public markets is risible.

What is the Chevron deference doctrine?

Managing the US economy requires hundreds of thousands of subject matter experts—a.k.a. “regulators”—who bring order, transparency, and honesty to the US economy. Those experts must make millions of judgments each year in creating, implementing and applying federal regulations.

And this is where the “Chevron deference doctrine” comes in. When federal experts and regulators interpret federal regulations in esoteric areas such as maintaining healthy fisheries, their decisions should be entitled to a certain amount of deference. And they have received such deference since 1984, when the US Supreme Court created a rule of judicial deference to decisions by federal regulators in the case of Chevron v. NRDC.

What happened at oral argument?

In a pair of cases, the US Supreme Court heard argument on Tuesday as to whether the Chevron deference doctrine should continue—or whether the Court should overturn the doctrine and effectively throw out 17,000 federal court decisions applying the doctrine. According to Court observers, including Mark Joseph Stern of Slate, the answer is “Yes, the Court is poised to appoint federal judges as regulators of the US economy.” See Mark Joseph Stern in Slate, The Supreme Court is seizing more power from Democratic presidents. (slate.com)

I recommend Stern’s article for a description of the grim atmosphere at the oral argument—kind of “pre-demise” wake for the Chevron deference doctrine. Stern does a superb job of explaining the effects of overruling Chevron:

Here’s the bottom line: Without Chevron deference, it’ll be open season on each and every regulation, with underinformed courts playing pretend scientist, economist, and policymaker all at once. Securities fraud, banking secrecy, mercury pollution, asylum applications, health care funding, plus all manner of civil rights laws: They are ultravulnerable to judicial attack in Chevron’s absence. That’s why the medical establishment has lined up in support of Chevron, explaining that its demise would mark a “tremendous disruption” for patients and providers; just rinse and repeat for every other area of law to see the convulsive disruptions on the horizon.

The Kochs and the Federalist Society have bought and paid for this sad outcome. The chaos that will follow will hurt consumers, travelers, investors, patients and—ultimately—American businesses, who will no longer be able to rely on federal regulators for guidance as to the meaning of federal regulations. Instead, businesses will get an answer to their questions after lengthy, expensive litigation before overworked and ill-prepared judges implement a political agenda.

Expand the Court. Disband the reactionary majority by relegating it to an irrelevant minority. If we win control of both chambers of Congress in 2024 and reelect Joe Biden, expanding the Court should be the first order of business.

[Robert B. Hubbell Newsletter]

[unidentifiedwhistlingobject]

some days the only word I know is fuck

[lovealwayssay]

Not to sound like a conspiracy theorist, but I feel like the Supreme Court waited until the debate to make these decisions so people would be distracted, just like how all the huge strikes on Gaza have been during major televised events in the US. They’re trying to distract us from what is going on.

[mostlysignssomeportents]

There’s no such thing as “shareholder supremacy”

On SEPTEMBER 24th, I'll be speaking IN PERSON at the BOSTON PUBLIC LIBRARY!

Here's a cheap trick: claim that your opponents' goals are so squishy and qualitative that no one will ever be able to say whether they've been succeeded or failed, and then declare that your goals can be evaluated using crisp, objective criteria.

This is the whole project of "economism," the idea that politics, with its emphasis on "fairness" and other intangibles, should be replaced with a mathematical form of economics, where every policy question can be reduced to an equation…and then "solved":

https://pluralistic.net/2023/03/28/imagine-a-horse/#perfectly-spherical-cows-of-uniform-density-on-a-frictionless-plane

Before the rise of economism, it was common to speak of its subjects as "political economy" or even "moral philosophy" (Adam Smith, the godfather of capitalism, considered himself a "moral philosopher"). "Political economy" implicitly recognizes that every policy has squishy, subjective, qualitative dimensions that don't readily boil down to math.

For example, if you're asking about whether people should have the "freedom" to enter into contracts, it might be useful to ask yourself how desperate your "free" subject might be, and whether the entity on the other side of that contract is very powerful. Otherwise you'll get "free contracts" like "I'll sell you my kidneys if you promise to evacuate my kid from the path of this wildfire."

The problem is that power is hard to represent faithfully in quantitative models. This may seem like a good reason to you to be skeptical of modeling, but for economism, it's a reason to pretend that the qualitative doesn't exist. The method is to incinerate those qualitative factors to produce a dubious quantitative residue and do math on that:

https://locusmag.com/2021/05/cory-doctorow-qualia/

Hence the famous Ely Devons quote: "If economists wished to study the horse, they wouldn’t go and look at horses. They’d sit in their studies and say to themselves, ‘What would I do if I were a horse?’"

https://pluralistic.net/2022/10/27/economism/#what-would-i-do-if-i-were-a-horse

The neoliberal revolution was a triumph for economism. Neoliberal theorists like Milton Friedman replaced "political economy" with "law and economics," the idea that we should turn every one of our complicated, nuanced, contingent qualitative goals into a crispy defined "objective" criteria. Friedman and his merry band of Chicago School economists replaced traditional antitrust (which sought to curtail the corrupting power of large corporations) with a theory called "consumer welfare" that used mathematics to decide which monopolies were "efficient" and therefore good (spoiler: monopolists who paid Friedman's pals to do this mathematical analysis always turned out to be running "efficient" monopolies):

https://pluralistic.net/2022/02/20/we-should-not-endure-a-king/

One of Friedman's signal achievements was the theory of "shareholder supremacy." In 1970, the New York Times published Friedman's editorial "The Social Responsibility of Business Is to Increase Its Profits":

https://www.nytimes.com/1970/09/13/archives/a-friedman-doctrine-the-social-responsibility-of-business-is-to.html

In it, Friedman argued that corporate managers had exactly one job: to increase profits for shareholders. All other considerations – improving the community, making workers' lives better, donating to worthy causes or sponsoring a little league team – were out of bounds. Managers who wanted to improve the world should fund their causes out of their paychecks, not the corporate treasury.

Friedman cloaked his hymn to sociopathic greed in the mantle of objectivism. For capitalism to work, corporations have to solve the "principal-agent" problem, the notoriously thorny dilemma created when one person (the principal) asks another person (the agent) to act on their behalf, given the fact that the agent might find a way to line their own pockets at the principal's expense (for example, a restaurant server might get a bigger tip by offering to discount diners' meals).

Any company that is owned by stockholders and managed by a CEO and other top brass has a huge principal-agent problem, and yet, the limited liability, joint-stock company had produced untold riches, and was considered the ideal organization for "capital formation" by Friedman et al. In true economismist form, Friedman treated all the qualitative questions about the duty of a company as noise and edited them out of the equation, leaving behind a single, elegant formulation: "a manager is doing their job if they are trying to make as much money as possible for their shareholders."

Friedman's formulation was a hit. The business community ran wild with it. Investors mistook an editorial in the New York Times for an SEC rulemaking and sued corporate managers on the theory that they had a "fiduciary duty" to "maximize shareholder value" – and what's more, the courts bought it. Slowly and piecemeal at first, but bit by bit, the idea that rapacious greed was a legal obligation turned into an edifice of legal precedent. Business schools taught it, movies were made about it, and even critics absorbed the message, insisting that we needed to "repeal the law" that said that corporations had to elevate profit over all other consideration (not realizing that no such law existed).

It's easy to see why shareholder supremacy was so attractive for investors and their C-suite Renfields: it created a kind of moral crumple-zone. Whenever people got angry at you for being a greedy asshole, you could shrug and say, "My hands are tied: the law requires me to run the business this way – if you don't believe me, just ask my critics, who insist that we must get rid of this law!"

In a long feature for The American Prospect, Adam M Lowenstein tells the story of how shareholder supremacy eventually came into such wide disrepute that the business lobby felt that it had to do something about it:

https://prospect.org/power/2024-09-17-ponzi-scheme-of-promises/

It starts in 2018, when Jamie Dimon and Warren Buffett decried the short-term, quarterly thinking in corporate management as bad for business's long-term health. When Washington Post columnist Steve Pearlstein wrote a column agreeing with them and arguing that even moreso, businesses should think about equities other than shareholder returns, Jamie Dimon lost his shit and called Pearlstein to call it "the stupidest fucking column I’ve ever read":

https://www.washingtonpost.com/news/wonk/wp/2018/06/07/will-ending-quarterly-earnings-guidance-free-ceos-to-think-long-term/

But the dam had broken. In the months and years that followed, the Business Roundtable would adopt a series of statements that repudiated shareholder supremacy, though of course they didn't admit it. Rather, they insisted that they were clarifying that they'd always thought that sometimes not being a greedy asshole could be good for business, too. Though these statements were nonbinding, and though the CEOs who signed them did so in their personal capacity and not on behalf of their companies, capitalism's most rabid stans treated this as an existential crisis.

Lowenstein identifies this as the forerunner to today's panic over "woke corporations" and "DEI," and – just as with "woke capitalism" – the whole thing amounted to a a PR exercise. Lowenstein links to several studies that found that the CEOs who signed onto statements endorsing "stakeholder capitalism" were "more likely to lay off employees during COVID-19, were less inclined to contribute to pandemic relief efforts, had 'higher rates of environmental and labor-related compliance violations,”' emitted more carbon into the atmosphere, and spent more money on dividends and buybacks."

One researcher concluded that "signing this statement had zero positive effect":

https://www.theatlantic.com/ideas/archive/2020/08/companies-stand-solidarity-are-licensing-themselves-discriminate/614947

So shareholder supremacy isn't a legal obligation, and statements repudiating shareholder supremacy don't make companies act any better.

But there's an even more fundamental flaw in the argument for the shareholder supremacy rule: it's impossible to know if the rule has been broken.

The shareholder supremacy rule is an unfalsifiable proposition. A CEO can cut wages and lay off workers and claim that it's good for profits because the retained earnings can be paid as a dividend. A CEO can raise wages and hire more people and claim it's good for profits because it will stop important employees from defecting and attract the talent needed to win market share and spin up new products.

A CEO can spend less on marketing and claim it's a cost-savings. A CEO can spend more on marketing and claim it's an investment. A CEO can eliminate products and call it a savings. A CEO can add products and claim they're expansions into new segments. A CEO can settle a lawsuit and claim they're saving money on court fees. A CEO can fight a lawsuit through to the final appeal and claim that they're doing it to scare vexatious litigants away by demonstrating their mettle.

CEOs can use cheaper, inferior materials and claim it's a savings. They can use premium materials and claim it's a competitive advantage that will produce new profits. Everything a company does can be colorably claimed as an attempt to save or make money, from sponsoring the local little league softball team to treating effluent to handing ownership of corporate landholdings to perpetual trusts that designate them as wildlife sanctuaries.

Bribes, campaign contributions, onshoring, offshoring, criminal conspiracies and conference sponsorships – there's a business case for all of these being in line with shareholder supremacy.

Take Boeing: when the company smashed its unions and relocated key production to scab plants in red states, when it forced out whistleblowers and senior engineers who cared about quality, when it outsourced design and production to shops around the world, it realized a savings. Today, between strikes, fines, lawsuits, and a mountain of self-inflicted reputational harm, the company is on the brink of ruin. Was Boeing good to its shareholders? Well, sure – the shareholders who cashed out before all the shit hit the fan made out well. Shareholders with a buy-and-hold posture (like the index funds that can't sell their Boeing holdings so long as the company is in the S&P500) got screwed.

Right wing economists criticize the left for caring too much about "how big a slice of the pie they're getting" rather than focusing on "growing the pie." But that's exactly what Boeing management did – while claiming to be slaves to Friedman's shareholder supremacy. They focused on getting a bigger slice of the pie, screwing their workers, suppliers and customers in the process, and, in so doing, they made the pie so much smaller that it's in danger of disappearing altogether.

Here's the principal-agent problem in action: Boeing management earned bonuses by engaging in corporate autophagia, devouring the company from within. Now, long-term shareholders are paying the price. Far from solving the principal-agent problem with a clean, bright-line rule about how managers should behave, shareholder supremacy is a charter for doing whatever the fuck a CEO feels like doing. It's the squishiest rule imaginable: if someone calls you cruel, you can blame the rule and say you had no choice. If someone calls you feckless, you can blame the rule and say you had no choice. It's an excuse for every season.

The idea that you can reduce complex political questions – like whether workers should get a raise or whether shareholders should get a dividend – to a mathematical rule is a cheap sleight of hand. The trick is an obvious one: the stuff I want to do is empirically justified, while the things you want are based in impossible-to-pin-down appeals to emotion and its handmaiden, ethics. Facts don't care about your feelings, man.

But it's feelings all the way down. Milton Friedman's idol-worshiping cult of shareholder supremacy was never about empiricism and objectivity. It's merely a gimmick to make greed seem scientifically optimal.

The paperback edition of The Lost Cause, my nationally bestselling, hopeful solarpunk novel is out this month!

If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:

https://pluralistic.net/2024/09/18/falsifiability/#figleaves-not-rubrics/a>

[thatgingerloser]

what a joke.

[qualiacumque]

look at my ms paint memes boy

[odinsblog]

The Supreme Court fundamentally altered the way that our federal government functions on Friday, transferring an almost unimaginable amount of power from the executive branch to the federal judiciary. By a 6–3 vote, the conservative supermajority overruled Chevron v. NRDC, wiping out four decades of precedent that required unelected judges to defer to the expert judgment of federal agencies. The ruling is extraordinary in every way—a massive aggrandizement of judicial power based solely on the majority’s own irritation with existing limits on its authority. After Friday, virtually every decision an agency makes will be subject to a free-floating veto by federal judges with zero expertise or accountability to the people. All at once, SCOTUS has undermined Congress’ ability to enact effective legislation capable of addressing evolving problems and sabotaged the executive branch’s ability to apply those laws to the facts on the ground. It is one of the most far-reaching and disruptive rulings in the history of the court.

In Chevron, the court unanimously announced an important principle of law that governed the nation until Friday: When a federal statute is ambiguous, courts should defer to an agency’s reasonable interpretation of it. Why? Congress delegates countless important calls to agencies—directing the EPA, for instance, to limit harmful benzene emissions, rather than providing the precise formula to determine what level of benzene emissions is harmful to humans. Congress writes statutes broadly because it expects these agencies to respond to new facts and adjust their enforcement accordingly.

Crucially, these agencies are staffed with experts who have deep knowledge and experience in the area where Congress seeks to regulate. Such experts can understand and execute regulations more proficiently than federal judges, who are, at best, dilettantes in most fields of regulation. For example, an EPA scientist is unlikely to confuse nitrous oxide (laughing gas) with nitrogen oxide (a smog-causing emission), as Justice Neil Gorsuch did in a Thursday opinion blocking an EPA rule. Moreover, most agencies are staffed with political appointees whom the president can appoint and remove at will. That makes them far more accountable to the citizenry than federal judges, who are guaranteed life tenure no matter how badly they butcher the law.

Since 1984, federal courts have applied Chevron in about 18,000 decisions in every conceivable area of the law: energy policy, education, food and drug safety, labor, the environment, consumer protection, finance, health care, housing, law enforcement—the list is pretty much endless. It has become the background principle against which Congress enacts all legislation.

That all ends now.

(continue reading)

[nonenosome2]

What the Supreme Court's Chevron decision means for schools

Yet another good thing coming from the decision.

[dreaminginthedeepsouth]

Charles P. Pierce: Hard after Thursday night’s television debacle, the Supreme Court leaped in to destroy the separation of powers and, as Elie Mystal pointed out on Xwitter, to engage in the biggest power grab since Marbury v. Madison. Through the now-customary 6–3 vote delivered by the carefully manufactured conservative majority, the precedent of Chevron v. Natural Resources Defense Council, aka the Chevron deference, is now as dead as Julius Caesar. And thus forty years of administrative law comes to a rude and abrupt end. The decision further illustrates that the dedication of the carefully manufactured conservative majority to corporate oligarchy is utterly unshakable, expertise—scientific and otherwise—be damned. Don’t believe me? Ask Chief Justice John Roberts, who wrote the majority opinion.

“Perhaps most fundamentally, Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do.”

So instead of career scientists deciding that the E. coli convention in your pork loin makes it inadvisable to eat, some twenty-two-year old law clerk fresh out of Regent University School of Law will. Bon appétit!

Getting rid of Chevron was one of the golden dreams of the country’s oligarchs and the judges and lawyers in their pay. Along with Roe v. Wade, it was number one on the conservative hit parade. But Justice Neil Gorsuch, whose concurrence is chock-full of the kind of tinhorn erudition so beloved by the carefully manufactured conservative majority, has perhaps a special reason to dance on Chevron’s grave. His mother, Anne Gorsuch, was hired by the Reagan administration to run the EPA—into the ground, apparently. From The Washington Post:

Anne Gorsuch—like Reagan then and President Trump today—was a firm believer that the federal government was too big, too powerful and too eager to issue regulations that restricted businesses. As a result, she slashed the EPA’s budget by nearly a quarter and, according to a Washington Post story at the time, boasted that she had reduced the thickness of the book of clean water regulations from six inches to a half inch. She filled various departments at EPA with subordinates recruited from the very industries the agency was supposed to be regulating.

By the end of her stint at EPA, Anne Gorsuch was under siege. A half dozen congressional committees were looking into allegations of mismanagement of the Superfund program, which was designed to clean up abandoned toxic waste sites around the country. The House voted to cite Gorsuch for contempt of Congress for failing to turn over subpoenaed records.

In addition to its dollar-store history, Gorsuch’s concurrence pretty much turns the concept of stare decisis into Silly Putty. Return with us now to those thrilling days of the seventeenth and eighteenth centuries, Justice Neil Gorsuch, your host.

"Other consequences followed for the role precedent played in future judicial proceedings. Because past decisions represented something “less than a Law,” they did not bind future judges....At the same time, as Matthew Hale put it, a future judge could give a past decision “Weight” as “evidence” of the law....Expressing the same idea, William Blackstone conceived of judicial precedents as “evidence” of “the common law.” And much like other forms of evidence, precedents at common law were thought to vary in the weight due them."

Matthew Hale died in 1676. He was a notorious witch hunter and once argued that the existence of laws against witchcraft proved that witches existed. What the hell he has to do with PFAS pollution or workplace safety in a chicken plant is beyond me. But we live in his universe now, and Neil Gorsuch got his own back for his mom.

https://www.esquire.com/.../supreme-court-chevron.../...

[nodynasty4us]

Whichever candidate wins the election, the Supreme Court is going to be there to dismantle the regulatory state. That’s the real story here underneath everything else. Even if a Democratic president prevails—even if, somehow, a vigorous, 39-year-old Democratic president were elected—the Supreme Court would still be there to kneecap their attempts to deal with climate change, securities fraud, pension fraud, medical emergencies, and more. The Supreme Court can dismantle all of that without regard to who’s in the White House. That’s what the big story of this last week at the Supreme Court has been.

Pam Karlan, The presidential debate was a distraction from Supreme Court havoc, in Slate