> Why wouldn't certain parties with a national presence always shop for that forum?
They might, but then the decisions can be appealed to the Supreme Court, which can overrule any decision they make.
More to the point, it isn't the Supreme Court that makes the law, it's Congress. The courts are resolving ambiguities when Congress hasn't been clear. If any court interprets a statute in a way that Congress doesn't like, Congress can pass a new one that removes the ambiguity.
> If any court interprets a statute in a way that Congress doesn't like, Congress can pass a new one that removes the ambiguity.
That sounds great in theory, however our Congress is known to be useless and in total gridlock. Our Supreme Court is known to vote along 6/3 partly lines, all precedent be damned.
These are predictable things, and given the known biases, this does not sound favorable towards agility which allows smart disruptive innovation, does it?
It seems like we have given all the power to 6 Supreme Court justices. I hope that they have the budget to hire many more clerks, as they will need them to micromanage the federal government.
From Justice Kagan's dissent on Chevron, page 82:
> This Court has long understood Chevron deference to reflect what Congress would want, and so to be rooted in a presumption of legislative intent. Congress knows that it does not—in fact cannot—write perfectly complete regulatory statutes...
> It knows that those statutes will inevitably contain ambiguities that some other actor will have to resolve, and gaps that some other actor will have to fill. And it would usually prefer that actor to be the responsible agency, not a court...
> Put all that together and deference to the agency is the almost obvious choice, based on an implicit congressional delegation of interpretive authority. We defer, the Court has explained, “because of a presumption that Congress” would have “desired the agency (rather than the courts)” to exercise “whatever degree of discretion” the statute allows. Smiley v. Citibank (South Dakota), N. A., 517
U. S. 735, 740–741 (1996).
> Today, the Court flips the script: It is now “the courts (rather than the agency)” that will wield power when Congress has left an area of interpretive discretion. A rule of judicial humility gives way to a rule of judicial hubris. In recent years, this Court has too often taken for itself decision-making authority Congress assigned to agencies. The Court has substituted its own judgment on workplace health for that of the Occupational Safety and Health Administration; its own judgment on climate change for that of the Environmental Protection Agency; and its own judgment on student loans for that of the Department of Education.
Emphasis above is mine.
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edit after a couple upvotes:
AFAICT, the administrative agencies are the only part of our government that has been functional in recent times.
Look at what the FAA has managed to pull off with a very limited budget. FAA interpreted laws to allow what SpaceX, and the rest of New Space has accomplished. Now what? There weren't omniscient laws passed, so Blue Origin for example, could theoretically tie SpaceX up in court for new launch licenses? And the final call will be made by a law clerk, instead of space industry professionals?
>That sounds great in theory, however our Congress is known to be useless and in total gridlock.
We should really fix this instead of making end runs around congress. The rule of law changing on the whims of which president is in office every 4 years is insanity and we shouldn't be standing for congress abdicating their responsibilities here.
It is precisely because congress has been abdicating their responsibilities that we are here in the first place. The Chevron deference was a patch over an already failing system. The fact that Net Neutrality has both been "law" and not law multiple times all within the span of 16 years is not a sign of a functioning legal system. The fact that the president of the US has arbitrarily instructed an entire law enforcement agency to not enforce a law because a significant number of states are refusing to do so, but at the same time the next president could revert that decision and make thousands of americans criminal overnight, all while we wait and hold our breath that the law enforcement agency decides to change their mind on whether the law is or isn't the law is also insanity, and all of this because congress continues to fail to act. And yet, that is exactly where we are with the status of marijuana in this country. Deferring to the enforcers of a law what their powers under that law are is a terrible idea. If we were talking about deferring to the police about what their powers were when the law was ambiguous, we'd all know that for the terrible idea it is. But replace "police" with the ATF, EPA or FCC and suddenly we don't think it's a bad idea anymore.
Overturning Chevron doesn't mean that agencies don't have regulatory authority or that congress has to write super specific laws. It means that the courts no longer play favorites when it comes to determining the scope of powers when that scope is ambiguous.
> FAA interpreted laws to allow what SpaceX, and the rest of New Space has accomplished. Now what? There weren't omniscient laws passed, so Blue Origin for example, could theoretically tie SpaceX up in court for new launch licenses? And the final call will be made by a law clerk, instead of space industry professionals?
The final call is where it's always been, in the hands of congress. If congress can find the time in their terribly busy schedule to pass a law to rename an outpatient clinic[1], and again [2], and again[3] (and do it another 10 times this session), mandate the all government agencies can only by US made flags [4], or order the US Mint to issue special commemorative coins for the Marine Corps [5], then surely they can find the time to expand and clarify the FAA's scope of authority. Maybe they could do it when they re-authorize the existence of the entire FAA [6]. Don't get me wrong, I'm not specifically calling out congress for having these sorts of minor laws going through their docket. I'm just bothered by this weird idea that somehow we can't expect an entire branch of our government to be functional long enough to clarify its own laws, but still be functional enough to spend its time (and our tax money) on these sorts of minor concerns. And we're so sure we can't expect them to be able to do it, we'd rather allow either of the other two branches to do it for them just so we can get on with things.
This feels like the equivalent of everyone working around the boss' nephew who's constantly spilling his soda in the server racks, and tripping over power cords. And rather than fix that, we just decide to build server rooms that blast hot air at high speeds through everything so soda is dried and whisked away before it does damage, and also by quadruple redundant power supplies and hire a few folks to follow the nephew around plugging the power supplies back in. And everyone knows this is bad, but we're mad at the CFO for not authorizing the installation of a larger AC unit even though servers are overheating because of all the extra heat the power supplies and air blowers are dumping into the room.
> That sounds great in theory, however our Congress is known to be useless and in total gridlock.
That's what they're supposed to do when there isn't public consensus. You have to convince enough people that you're right to get the votes to pass the bill.
> Our Supreme Court is known to vote along 6/3 partly lines, all precedent be damned.
The table does not show predominantly 6/3 party line decisions.
> These are predictable things, and given the known biases, this does not sound favorable towards agility which allows smart disruptive innovation, does it?
The government isn't in the disruptive innovation business. The federal government in particular is supposed to do nothing in response to contentious issues, so the states can do multiple different things as their voters prescribe and then we can see what works the best. You shouldn't have any federal law on a new thing until it shakes out enough for people to reach consensus on what the federal law should be. And if that never happens then you let the different states have different laws.
> Congress knows that it does not—in fact cannot—write perfectly complete regulatory statutes...
Of course not, but it can certainly read a Supreme Court opinion and amend the law if there is consensus that the result was wrong.
> And it would usually prefer that actor to be the responsible agency, not a court...
We can dispatch with this with a simple question: Do you think agency determinations should be bound by stare decisis?
Saying yes is obviously going to result in a rush to publish a rule resolving every ambiguity in the favor of whatever party is currently in power when the law passes, because the executive is a political branch, unlike the courts, and has only one elected official. This gives too much power to the executive.
Saying no leads to the law flip flopping every time the Presidency changes parties, which is bad and the thing stare decisis is intended to prevent.
Since both of the options lead to a problem, leaving the determination in the hands of the executive branch is the wrong choice.
> It is now “the courts (rather than the agency)” that will wield power when Congress has left an area of interpretive discretion.
Which is exactly the role of the courts. They can listen to the administrative agency's arguments, as well as the other side's, but deciding how to interpret the law is what courts do.
> Of course not, but it can certainly read a Supreme Court opinion and amend the law if there is consensus that the result was wrong.
Which is still problematic because the Supreme Court is almost as partisan (if not as) than the senate. So it will still be able to pick and chose which laws to challenge and when (i.e. they can just wait till the majority changes making any "clarifying" amendments unfeasible politically before making a ruling).
Effectively at this point the Supreme Court just seems to pretty much be an extension of the legislative and executives branches just with a lot more randomness due to its small size and no term limits.
> Saying no leads to the law flip flopping every time the Presidency changes parties, which is bad and the thing stare decisis is intended to prevent.
Unless enough justices die/retire during that president's term then you end up with the same type of flip flopping.
> Which is still problematic because the Supreme Court is almost as partisan (if not as) than the senate.
Not even close. Justices have certain leanings but in general they care about their legitimacy.
Legislators regularly enact laws solely because they needed to pick up votes from a particular constituency, or somebody paid them to, even when the laws are transparently pandering, wasteful, absurd or needlessly complicated.
> So it will still be able to pick and chose which laws to challenge and when (i.e. they can just wait till the majority changes making any "clarifying" amendments unfeasible politically before making a ruling).
If that party is already in the majority it could have just passed the law it wants anyway?
> Unless enough justices die/retire during that president's term then you end up with the same type of flip flopping.
They're not supposed to do that. That's what stare decisis is about. It happens occasionally but it's not that often.
Whereas when the party that controls the White House changes, they had been setting about to undo every thing the previous administration did as a matter of course. It's completely different.
> Justices have certain leanings but in general they care about their legitimacy.
Some do. Some (almost completely openly) accept actual bribes.
However you do have a perfectly valid point, having their seats for life their actions are either guided by (presumably honest) conviction (or in a few cases monetary/social gain) which in some ways is certainly an improvement over elected officials.
> If that party is already in the majority it could have just passed the law it wants anyway?
Depends. The cost/friction of passing new laws or amendments is still usually quite high and even if you have a majority in both houses and the president there is only so much you can achieve in 2-4 years. Then even these days both parties are not 100% monolithic and there still might be some splits across party lines on less publicly visible issues (the members of your party who are on the fence might start demanding stuff in return etc.)
> It's completely different.
I wouldn't say it's completely different just not as radical and usually takes a few decades. e.g. Roe v. Wade would be brought back immediately after progressives/liberals had a majority (which is of course unlikely to be anytime soon unless Biden's plan to pack/reform the supreme court somehow went through..)
> Some (almost completely openly) accept actual bribes.
This is explicitly illegal. If you can actually prove this you can prosecute them for it. If you can't actually prove it, it's just speculation and innuendo.
> The cost/friction of passing new laws or amendments is still usually quite high and even if you have a majority in both houses and the president there is only so much you can achieve in 2-4 years.
When the parties want something the other one doesn't, they write the text when they decide they want it and then put it on the stack of things to pass the next time they're in power. Half of these things don't even get debated, they just get tacked onto the Patriot Act or Inflation Reduction Act or whatever this year's odious omnibus is for the party gets to ram through the things they want.
It's a stupid way to do things, but it's still what happens.
> Then even these days both parties are not 100% monolithic and there still might be some splits across party lines on less publicly visible issues (the members of your party who are on the fence might start demanding stuff in return etc.)
That just means that even your own party doesn't agree they want it, which is exactly the sort of thing you don't want to pass unilaterally -- it's a minority position that can't get 51 votes even when the proponents' party has 55.
> e.g. Roe v. Wade would be brought back immediately after progressives/liberals had a majority
Not necessarily. The problem with Roe v. Wade was always that it was created by activists -- regardless of what you think about it as a matter of policy, the word abortion doesn't appear anywhere in the constitution and the logic of the opinion would constrained the government from interfering with a variety of other personal and healthcare activities, which inconsistently was never applied. People wanted a right to abortion to be in the constitution but it isn't in there and they didn't have the votes to amend it, so they made one up out of thin air. If you want it, the right way to do it is to get the votes.
But the other interesting bit is that the word abortion doesn't appear in the constitution, and the federal government is one of enumerated powers. So there is a much stronger argument that the federal government should have no power to regulate it, i.e. a national abortion ban is arguably unconstitutional because it's beyond the federal government's enumerated powers.
Now you give that case to a Court with a liberal majority, or even one with a few opportunistic liberals and a couple of conservatives who are true to their principles, and you could get something that isn't Roe but is going to shut down the flip flopping by punting it out of federal jurisdiction for the foreseeable future. And if you want to put on your political hat for a second, the Justices have the incentive to do something like that, because they hate politicizing the Court (protesters show up to their houses and threaten to kill them!), so telling everyone "either go bother the state courts or pass the constitutional amendment, we're out of this" could be a sticky equilibrium.
I'm not saying that's going to happen, but it's the sort of thing that could happen and would be a convenient result for the people whose decision it is to make it happen.
You have made an entirely valid argument, and I really appreciate the reply. This is the law of the land.
Now that the courts will have to do some of the work that was previously done by agencies, has the budget for the judicial branch been increased? If not, are we about to hit a major backlog which leads to less progress in the private sector?
Are there any estimates on how many new judges must be sworn in, and new clerks need to be hired?
It's not yet obvious how many more cases there will be. There probably will be more initially as people want to challenge things they previously didn't expect to be able to win because the courts would have deferred to the agency. But you also eliminate all the cases where an agency would change their interpretation, get sued, change it back, get sued by someone else, etc. Once the courts have established a precedent for that rule, there should be less flip flopping and consequently less litigation.
They might, but then the decisions can be appealed to the Supreme Court, which can overrule any decision they make.
More to the point, it isn't the Supreme Court that makes the law, it's Congress. The courts are resolving ambiguities when Congress hasn't been clear. If any court interprets a statute in a way that Congress doesn't like, Congress can pass a new one that removes the ambiguity.