I agree that it's a problem for congress to solve. But I disagree that the court is resolving an issue of policy. If policy carries penalties and the ability of the government to punish you, then it is inherently a matter of law, because the government is inherently limited by the constitution only to the powers enumerated to it. And likewise, the powers of the executive branch to make policy is limited to the scope to which congress has (by law) granted them the power to make that policy.
If the law isn't clear whether a given policy is within the scope of authority granted by congress, determining whether or not it is within the scope is an issue of law.
Sure, but Chevron never was blind deference: it was a precedent of judicial restraint, recognising that the democratically elected legislature had delegated authority via statute to the democratically elected executive. But that never stopped the Courts from making decisions on matters of law. Striking down a regulation because it violated the constitution was perfectly okay under Chevron.
What's happened is that the Supreme Court is citing a precedent that gave itself extra-constitutional powers to declare things unconstitutional, to permanently wedge itself between the executive and legislative. It's no longer a co-equal branch; a check and balance. It's now a veto. The fact the Supreme Court is behaving this way is very concerning and fundamentally undermines its legitimacy.
You've got it wrong. The Chevron rule applies to situations where the government/executive branch interprets the laws (not constitution) passed by Congress. The rule says nothing about regulations being unconstitutional, and says nothing about striking down laws or regulations because they are unconstitutional.
The Supreme Court recently reversed the Chevron decision, which, obviously could not be "extra-constitutional" in itself -- if you are right that Chevron was a precedent of judicial restraint, then reversing the restraint just means that at worst the SC is (ab)using its constitutional powers "without restraint" to interpret laws, but it isn't assigning itself "extra-constitutional" powers, and the reversal of the Chevron rule definitely isn't related to declaring things unconstitutional. Again, it's about declaring that the executive branch misinterpreted laws passed by Congress.
I get that people are upset that the un-elected Supreme Court is overriding decisions made by democratically elected institutions, but constitutional law (not quite related here) and administrative law (which is what the Chevron rule was about) can be nuanced and there can be implications that aren't obvious to lay people. The political-affinity of such decisions also tend to cloud judgement.
Yes, Chevron was a level of deference given to agencies (like the EPA) to interpret their remit. If a law says "The EPA shall have authority to regulate emissions", then the EPA would be given deference to interpret what an emission is, and what a regulation is. They are the experts, after all. This was brought into sharp relief when a Supreme Court justice recently, and repeatedly, mistook nitrogen oxide (a greenhouse gas) for nitrous oxide (laughing gas). And by recently, I mean less than two weeks ago.
Loper Bright Enterprises v. Raimondo, the case that overturned Chevron, repeatedly cites Marbury v. Madison, the case where the Supreme Court vastly expanded its own power by, in part, giving itself the extra-constitutional power to declare things unconstitutional. Indeed, some of the arguments in the opinions of the Court is that Chevron, or any deference, is unconstitutional because the Courts have sole discretion to interpret the law, "to say what the law is".
The overturning of Chevron was not an abuse of extra-constitutional power, but it was a decision made from a Court hoisted with their own petards. It means every. single. interpretation. no matter how small, no matter how obviously within the scope of the statute, is now up for litigation in a full-scale trial with all the appeals that will follow. It is so massively disruptive that the Supreme Court would've immediately declared a Major Question if it were anyone else other than the Supreme Court doing it. But I guess the Supreme Court can act without limit and that's fine.
> Again, it's about declaring that the executive branch misinterpreted laws passed by Congress.
Not true. The Supreme Court didn't merely say that the National Marine Fisheries Service misinterpreted a law passed by Congress, it said that Chevron deference is overturned. It was the only thing the Supreme Court held in its decision.
And this decision, as with most others, is very clearly the result of corruption and political alignment: if the composition of the Court had been different, the decision would have been different. This is a direct result of the Trump appointments, of having a conservative supermajority who are there to legislate from the bench. This cannot be ignored.
> Loper Bright Enterprises v. Raimondo, the case that overturned Chevron, repeatedly cites Marbury v. Madison, the case where the Supreme Court vastly expanded its own power by, in part, giving itself the extra-constitutional power to declare things unconstitutional.
If you're claiming Marbury v. Madison to be wrong... well, that was an unexpected twist and I must say I've totally misread your comment.
I thought the main thrust of the argument in Loper was s706 of the Administrative Procedure Act though.
> If you're claiming Marbury v. Madison to be wrong... well, that was an unexpected twist and I must say I've totally misread your comment.
It's not so much that Marbury v. Madison is wrong, though I do believe that. It's more that it began the transformation of the Supreme Court into being the go-to way of amending the Constitution. It's just that this particular Court is unusually shameless about it. And their decisions are removing rights, as opposed to decisions like Miranda v. Arizona, or Gideon v. Wainwright.
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Judicial Review for Constitutionality has no bearing in the Constitution. And while it can be argued that it's mentioned within the Federalist Papers, those are not law. The Declaration of Independence is also an extremely important document in US history, but that doesn't grant a legal right to secede, much to Texas' chagrin.
The Constitution says shockingly little about the judiciary in general. Using the National Constitution Centre, Article 3 has 377 words, whereas Article 2 (executive) has 1025 words, and Article 1 (Congress) has 2297 words. And since the Constitution was written to only grant as much power as was considered necessary, unless those 377 words grant carte blanche to the judiciary (they don't), then one might expect the judiciary to be the most restrained branch of the three; its enumerated powers are very few indeed.
Instead, the Supreme Court has arguably become the most powerful branch of government due to its self-proclaimed stewardship of the Constitution. What can the other branches do to reign the Supreme Court in? And I mean in real-terms, not theoretical ability with a politically-harmonious Congress. The honest answer is little to nothing, that the only real solution is a Constitutional Convention, which is unprecedented as none of the 27 (or 18 depending on how you choose to count) Amendments were passed that way.
If the Supreme Court never came to believe that they were stewards of the Constitution, this decision would've never happened. Firstly because there'd be little point or interest in making political appointments to a Court with comparatively little power, so you wouldn't have a bunch of Federalist Society minions on the bench. But secondly, such a Court would feel extremely uneasy about overturning Chevron exactly because it upends the legal framework that Congress and the executive have been willingly operating under for the past several decades.
If you’re opposed to the fundamental function of the USSC to the point that you’re unhappy with Marbury v Madison, then there’s not a whole lot of common ground to discuss the Chevron case and it’s overturn.
Don’t get me wrong, I honestly have no stake in the discussion since i’m not an American, and I’m well aware of the controversies in Marbury v Madison, I’m just trying to point out that while your objection to USSC’s fundamental role is well taken, the Loper case is more of an administrative law issue regarding the proper application of Section 706 of the Administrative Procedure Act, which reads:
To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. [……]
The ideal constitutional function of the USSC seems tangential to Chevron and Loper, AFAICT
You have very much drunk the koolaid if you believe that Judicial Review for Constitutionality is a "fundamental function" of the Supreme Court. Perhaps it's radical of me, but I generally prefer that government institutions act within the law; and there's nothing in the law that gives them that power.
What I was saying, and have attempted to clarify multiple times now, is that Marbury v. Madison [and the other cases that have expanded the Supreme Court's power] has set a culture. You said it yourself: "then reversing the restraint just means that at worst the SC is (ab)using its constitutional powers 'without restraint' to interpret laws". Them discarding judicial restraint is a consequence of such a culture.
I feel like I've emphasised this point enough and it doesn't need further clarification. Cya, I guess.
If the law isn't clear whether a given policy is within the scope of authority granted by congress, determining whether or not it is within the scope is an issue of law.