Scrutable

Coming close behind overturning Roe-vs-Wade, a major ambition for conservatives - quite explicitly stated - has been overturning the four decade old principle known as Chevron Deference. This was a ruling which found that Federal agencies have the right, when making regulations, to fill in any ambiguities or gaps in the governing law, explicit or implicit, provided it is consistent with the general aims and principles of that law. It is a discretion that has been used by both republican and democratic administrations to make such regulations according to their political preferences. It is an extremely sensible ruling, as it gives subject matter experts, rather than judges, the power to make rules on technical subject matter on the many regulations that govern daily life, business practice and many other aspects of public administration. Now,the judges have grabbed the right to make those rules.

It will come as no surprise that the Koch Brothers funded the two cases. For in a conservative world, business should be able to pollute and despoil and endanger and cheat and scam without pesky regulations that their pocket judges, who may be located in Trashcan, Nebraska or Ponziville, Alabama, can relieve them from.

The two cases about herring fishing were easily lost at every lower level due to the Chevron Deference principle. They were taken to the Supreme Court, quite explicitly asking that the court to overturn Chevron Deference. Normally SCOTUS would refuse such cases that so plainly sought to overturn an established legal principle. But it was a principle that the conservative justices were keen to overturn, and so took on what had been orchestrated to give them that opportunity. SCOTUS was quite clear that overturning Chevron Deference is just what it has done in ruling on those cases.

SCOTUS not only ignored stare decisis (established legal precedent) in coming to that decision, it also generally subverted the principle of stare decisis by making a rule that allows every regulation made by Federal agencies throughout history to be perpetually subject to challenge. Nothing is ever settled. Even though these conservative justices previously said that stare decisis was an important principle for them, when the moment arose for them to award themselves the power to rewrite every set of Federal regulations in a conservative way, they abandoned stare decisis and grabbed the power. It makes it far harder for Federal agencies even to make regulations.

Conservatives have not usually been in favour of judge-made law. But now the conservatives rule the court, and have the opportunity to cause so much mayhem, they are suddenly in favour of it. And it is going to make the law courts very busy as vested interests go after every challengeable regulation that is inconvenient to them. And many wacky and strange decisions will doubtless be issued by courts in such places as Trashcan, Nebraska and Ponziville, Alabama.

Would you believe, Neil Gorsuch's mother was a defendant in the original Chevron case... For him, the case was personal.

My source is this presentation by LegalEagle on youtube, 25mins, where again the excellent Liz Dye presents much of it.

Chevron Deference sounds a bit analogous to (although not the same as) the general principles of judicial review in England, Wales and Scotland (I don't know about NI). Wednesbury unreasonabless, irrationality and ultra vires aren't quite the same as each other but there's a general underlying theme that unless an executive body does something completely ridiculous, the courts won't interfere. Unfortunately that can lead to some terrible decisions being made with fairly disastrous consequences for people, but on the other hand it would of course be quite difficult to get anything done if decisions and actions were constantly challenged. The legislature can also regulate this to some extent in the way certain powers or duties are drafted. Funny how here the UK government wanted to pretty much get rid of judicial review altogether, which is probably a helpful indication of how the separation of powers works (or otherwise) here vs the US.

I suppose it's not inaccurate for the Supreme Court to have said that the courts routinely deal with statutory ambiguities in other contexts. On the other hand though you could say that if you know legislation is being drafted with the intention that it will be interpreted by federal/executive agencies, you can also probably conclude that any ambiguity has been created deliberately for those agencies to interpret.

There's another summary of the Chevron decision here, for anyone who doesn't want to watch a video: https://www.whitecase.com/insight-alert ... -need-know

discovolante wrote: Tue Jul 16, 2024 7:14 pm There's another summary of the Chevron decision here, for anyone who doesn't want to watch a video: https://www.whitecase.com/insight-alert ... -need-know

It is interesting that the article notes the conservative judges' mention, with approval, of the actions of SCOTUS during the New Deal era, in relation to public administration. It was SCOTUS's actions to interfere and impede the delivery of the New Deal that infuriated Roosevelt to the point of wanting to pack the court, to get a friendly court. In practice, he was prevented from doing that, and the court became a bit less obstructive in time, recognising that what it was potentially provoking.

In the light of the several recent politically motivated and dangerous SC judgments, Biden has likewise been talking about reforms to the supreme court, in particular the more reasonable suggestion of ending the life-time appointment of judges. (Perhaps presidents should also be age-limited.) He has also been talking about amending the constitution to control the recent SC judgment on presidential immunity. But these will be difficult to implement.