{"id":102779,"date":"2024-06-30T21:39:24","date_gmt":"2024-07-01T02:39:24","guid":{"rendered":"https:\/\/milesfortis.com\/?p=102779"},"modified":"2024-06-30T21:39:24","modified_gmt":"2024-07-01T02:39:24","slug":"102779","status":"publish","type":"post","link":"https:\/\/milesfortis.com\/?p=102779","title":{"rendered":""},"content":{"rendered":"

BLUF
\nSo there you are.\u00a0 A return to the rule of law, being treated as just the opposite.\u00a0 Par for the course in today\u2019s political discourse, alas.<\/p>\n

The Supreme Court, Chevron,<\/em>\u00a0and the Political Class\u2019s Worst Nightmare: Accountability.<\/a><\/p>\n

Goodbye,\u00a0Chevron<\/em>\u00a0deference.\u00a0 Larry Tribe is already mourning the Supreme Court\u2019s overturning of\u00a0NRDC v. Chevron,\u00a0<\/em>in the\u00a0Loper Bright<\/em>\u00a0and\u00a0Relentless<\/em>\u00a0cases, as a national catastrophe:<\/p>\n

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Oh, the humanity!<\/p>\n

Well, speaking as a professor of Administrative Law, I think I\u2019ll bear up just fine.\u00a0 I\u2019ve spent the last several years telling my students that\u00a0Chevron<\/em>\u00a0was likely to be reversed soon, and I\u2019m capable of revising my syllabus without too much trauma.\u00a0 It\u2019s on a word processor, you know.\u00a0 As for those academics who have built their careers around the intricacies of\u00a0Chevron<\/em>\u00a0deference, well, now they\u2019ll be able to write about what comes next.\u00a0And if they\u2019re not up to that task, then it was a bad idea to build a career around a single Supreme Court doctrine.<\/p>\n

And that wasn\u2019t the only important Supreme Court decision targeting the administrative state, a situation that has pundit Norm Ornstein, predictable voice of the ruling class\u2019s least thoughtful and most reflexive cohort, making Larry Tribe sound calm.<\/p>\n

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Sure, Norm, whatever you say.<\/p>\n

But how about let\u2019s look at what the Court actually did in\u00a0Chevron,<\/em>\u00a0and in the\u00a0Loper Bright<\/em>\u00a0and\u00a0Relentless<\/em>cases that overturned it, and in\u00a0SEC v Jarkesy,<\/em>\u00a0where the Court held that agencies can\u2019t replace trial by jury with their own administrative procedures, and in\u00a0Garland. v. Cargill,<\/em>\u00a0where the Court held that agencies can\u2019t rewrite statutes via their own regulations.\u00a0 I don\u2019t think you\u2019ll find the sort of Russian style power grab that Ornstein describes, but rather a return to constitutional government of the sort that he ought to favor.<\/p>\n

At root,\u00a0Chevron v. Natural Resources Defense Council<\/em>\u00a0is about deference.\u00a0 Deference is a partial abdication of decisionmaking in favor of someone else.\u00a0 So, for example, when we go out to dinner, I often order what my son-in-law orders, even if something else on the menu sounds appealing.\u00a0 I\u2019ve learned that somehow he always seems to pick the best thing.<\/p>\n

Deference doesn\u2019t mean \u201cI\u2019ve heard your argument and I\u2019m persuaded by it,\u201d (though something like that is misleadingly called \u201cSkidmore<\/em>\u00a0deference, \u201c but isn\u2019t actually deference at all).\u00a0 Deference means \u201ceven if I would have decided this question differently, I\u2019m going to go with your judgment instead.\u201d<\/p>\n

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Under\u00a0Chevron<\/em>\u00a0deference, when an agency interprets a statute it administers (e.g., the EPA and the Clean Air Act), a court will uphold its interpretation so long as it is (generously assessed) a reasonable one, even if it is not the interpretation the court would have come up with on its own.\u00a0 As you might imagine, this, at least potentially, gives agencies a lot more leeway, particularly when, as is often the case, Congress has drafted the statute ambiguously.<\/p>\n

With\u00a0Chevron<\/em>\u00a0overturned, courts will now apply their own judgment instead of deferring to agencies.\u00a0 Of course, this isn\u2019t as big a deal as Larry and Norm seem to think, because\u00a0Chevron<\/em>\u00a0has been dying the death of a thousand cuts for a while.\u00a0 Under the \u201cmajor questions doctrine,\u201d courts already decline to defer to agency interpretations where the issue has major social or economic ramifications.<\/p>\n

So the upshot now is that if Congress wants agencies to do things, it has to tell them to.\u00a0 If agencies think their statutes are inadequate to their purpose, they can ask Congress to amend them.\u00a0 Rather than a threat to democracy, this is \u00a0a modest return of decisionmaking to democratically elected legislators, and out of the hands of unelected bureaucrats.<\/p>\n

I say modest because\u00a0Chevron<\/em>\u00a0was dying for years, and because it was never entirely clear just how much difference it made where the rubber meets the road.\u00a0 Some post-Chevron<\/em>\u00a0studies found it made a modest difference in how often agency actions were upheld by courts post-Chevron<\/em>; others held that it didn\u2019t make much difference at all.\u00a0 It is, if anything, most significant as a statement of who is actually supposed to be boss in our system, and perhaps a notice that the judiciary is supposed to ride herd on agencies more closely than it has done in the past.<\/p>\n

With that in mind, the other cases make sense too.\u00a0 In\u00a0SEC v. Jarkesy,<\/em>\u00a0the Securities \u00a0and Exchange Commission the Court did something similar.\u00a0 To quote the NCLA\u00a0press release<\/a>\u00a0on this case (where NCLA was an\u00a0amicus<\/em>\u00a0on the winning side):<\/p>\n

George R. Jarkesy, Jr. was an investment professional and host of a nationally syndicated talk-radio program at the time when SEC conducted its administrative proceeding against him. He raised a constitutional claim against the SEC\u2019s ALJs, who enjoy multiple layers of protection from removal by the President. In an earlier precedent called\u00a0Free Enterprise Fund v. Public Co. Accounting Oversight Board, the Supreme Court made clear that officers of the U.S. may not be insulated from removal by multiple layers of protection without running afoul of the clause in Article II of the Constitution that requires the President to \u201ctake Care that the Laws be faithfully executed.\u201d<\/strong><\/span><\/p>\n

In addition to dismissing Mr. Jarkesy\u2019s constitutional removal claim, SEC violated his Seventh Amendment jury-trial rights as well as the equal protection component of the Fifth Amendment\u2019s Due Process Clause. The Dodd-Frank Act empowers SEC to obtain a jury trial by suing in federal court or avoid a jury trial by initiating an administrative proceeding. Enforcement targets, like Jarkesy, do not have a similar option. Thus, the law unfairly deprives them of the same right to demand a jury trial that SEC has\u2014a blatantly discriminatory rule.<\/strong><\/span><\/p>\n

In June 2024, the Supreme Court ruled in SEC v. Jarkesy that the Seventh Amendment jury trial right applies to administrative proceedings, a historic NCLA victory.<\/strong><\/span><\/p><\/blockquote>\n

So the SEC attempted to do administratively, via an in-house proceeding, what it is constitutionally required to do only via an Article III court with a life-tenured judge and a jury.\u00a0 The Supreme Court told it to follow the Constitution.\u00a0 Norm Ornstein thinks this is Putin-like.\u00a0 Spoiler:\u00a0 It\u2019s not.<\/p>\n

Then there\u2019s\u00a0Garland v. Cargill,<\/em>\u00a0the \u201cbump stock\u201d case.\u00a0 (This case was actually brought by the NCLA).\u00a0 After the still-unexplained mass shooting in Las Vegas, the BATFE rewrote its regulations to treat \u201cbump stocks\u201d as \u201cmachine guns.\u201d\u00a0 Under the\u00a0applicable statute,<\/a>\u00a0a machine gun is something that fires more than one round when the trigger is pulled.<\/p>\n

Bump stocks don\u2019t do that.\u00a0 Instead, they make it possible for you to essentially hold your finger steady while the gun vibrates or bounces against it, causing the trigger to be pulled more rapidly than most people can do it with a finger alone.\u00a0 But it\u2019s still one trigger-pull per bullet leaving the barrel.<\/p>\n

ATF argued, essentially, that the end result was kinda like a machine gun.\u00a0 The Court held that \u201ckinda like\u201d isn\u2019t enough for a criminal statute.\u00a0 If Congress wants to make bump stocks illegal, it can (probably, subject to Second Amendment limitations)\u00a0 pass a law banning bump stocks.\u00a0 ATF, however, can\u2019t pass laws.\u00a0 All it can do is adopt regulations interpreting laws, and regulations interpreting laws so that those laws do things that Congress didn\u2019t enact aren\u2019t \u201cinterpretations \u201cat all, but the equivalent of new laws, which only Congress can pass.\u00a0 (Article I of the Constitution states plainly that\u00a0\u201call legislative powers herein granted\u201d<\/a>\u00a0belong to Congress and nobody else.)<\/p>\n

So there we are.\u00a0 Rather than \u201cbrazenly seizing power from the other two branches,\u201d the Supreme Court has returned power to Congress, where the Constitution put it to begin with.\u00a0 The brazen seizing, in fact, was undertaken by the unelected administrative state, what even FDR\u2019s Commission on Administrative Government called a \u201cheadless fourth branch of government.\u201d<\/a>\u00a0 And that was in 1937; there\u2019s been a lot more seizing since then.<\/p>\n

Of course, the political class likes the administrative state for the precise reason it is constitutionally dubious \u2013 because it is not accountable to the voters.\u00a0 Instead, it is run by people like them, screening their often-subjective policy preferences behind confusing nomenclature, complex procedure, and (often dubious) claims of expertise.\u00a0 Like anything else that is a threat to the political class\u2019s power or prestige, a return to something closer to constitutional government generates fear, hostility and \u2013 as we can see \u2013 over-the-top language.\u00a0 The good news is, nobody listens to the political class much anymore.<\/p>\n

So there you are.\u00a0 A return to the rule of law, being treated as just the opposite.\u00a0 Par for the course in today\u2019s political discourse, alas.<\/p>\n","protected":false},"excerpt":{"rendered":"

BLUF So there you are.\u00a0 A return to the rule of law, being treated as just the opposite.\u00a0 Par for the course in today\u2019s political discourse, alas. The Supreme Court, Chevron,\u00a0and the Political Class\u2019s Worst Nightmare: Accountability. Goodbye,\u00a0Chevron\u00a0deference.\u00a0 Larry Tribe is already mourning the Supreme Court\u2019s overturning of\u00a0NRDC v. Chevron,\u00a0in the\u00a0Loper Bright\u00a0and\u00a0Relentless\u00a0cases, as a national … Continue reading “”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[39,23,50,24],"tags":[],"class_list":["post-102779","post","type-post","status-publish","format-standard","hentry","category-bureaucraps","category-courts","category-goobermint","category-rights"],"_links":{"self":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/102779","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=102779"}],"version-history":[{"count":1,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/102779\/revisions"}],"predecessor-version":[{"id":102780,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/102779\/revisions\/102780"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=102779"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=102779"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=102779"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}