[Gormo]

> 3. You are suggesting that under Chevron, no one would have any remedy for this unconstitutional behavior?

Well, this example includes the agency acting in a way that Congress itself would not have the power to authorize in the first place, so this is a bad example. Statutory interpretation doesn't really matter here, because even if the statute did authorize the PTEA to implement this policy, it would still be unconstitutional, so Chevron wouldn't even come into it.

Why make up outlandish examples, though, when we have the examples of the actual cases to look at? Loper involved a federal law requiring operators of certain fishing boats to allow for inspections to ensure compliance with fishing regulations. The agency tasked with enforcing that law decided for themselves that the statute conferred them the authority to bill the fishing boat operators for their inspectors' expenses when going out to make the inspections.

Under Chevron, the court would not have be able to judge for itself whether or not the statute actually authorizes the agency to charge the fisherman for the travel expenses of inspectors, and would have to defer to the agency's own interpretation that it does.

> 3b. You suggest Congress has no power to explicitly prohibit the "PTEA" from imposing individual fines related to speech on the environment?

Of course they do, by passing a statute. Which is then up to the courts to interpret and hold the PTEA accountable to -- with the reversal of Chevron, interpreting that statute would thankfully no longer be up to the PTEA itself.

[unethical_ban]

I'm reading some admittedly biased essays reassuring me this is bad. Do you suggest a longer form essay (besides the opinion) that defends this decision?

(You don't have to, I won't blame you or be snide if you don't. Because it really seems like we disagree ideologically).

Loper seems like it could have been narrowly interpreted but threw the baby out with the bathwater. I don't want a judge deciding what levels of lead in the water system are "clean enough" or how deadly a substance must be before the FDA decides it isn't fit for human consumption. I really would rather the elected executive with subject matter experts interpret then enforce those laws within reason.

>Under Chevron, the court would not have be able to judge for itself whether or not the statute actually authorizes the agency to charge the fisherman for the travel expenses of inspectors, and would have to defer to the agency's own interpretation that it does.

So? Congress sees the regulations passed under their authority. Why shouldn't they be the ones to call an enforcement action out? Why couldn't the fishermen petition their Representative?

[Gormo]

> I'm reading some admittedly biased essays reassuring me this is bad. Do you suggest a longer form essay (besides the opinion) that defends this decision?

Perhaps you should skip over all of the biased intermediaries, and just read the ruling itself.

> Loper seems like it could have been narrowly interpreted but threw the baby out with the bathwater.

What baby? What's desirable about executive-branch officials being given free reign to interpret the statute law that defines their own authority with no oversight? What does anyone -- other than those officials themselves -- gain out of allowing that?

> I really would rather the elected executive with subject matter experts interpret then enforce those laws within reason.

Subject matter experts at what? These are all normative questions -- yes, factual circumstances frame the real-world context they apply to, and yes, technical expertise may be a relevant and important input, but actually making the decisions means making value judgements, weighing cost against benefits, making risk/reward tradeoffs, reconciling the conflicting interests of involved parties, making sure everyone's rights are protected, etc. How does technical expertise in the factual context give anyone any special expertise in making the normative decisions?

Subject-matter experts testify before Congress all the time. Research institutes publish white papers; think tanks draft model statutes and explain them to legislators; expert witnesses testify in every sort of court case imaginable. All of that is important and necessary, and is absolutely not going away. But the idea that having technical expertise in some empirical domain is sufficient qualification to assume absolute control over decision-making, and toss out our whole system of democratic legislation and common-law jurisprudence -- both of which have always relied on experts to provide input on applicable facts -- seems absolutely incomprehensible to me.

And that's all even assuming that the people who staff these agencies actually are genuine experts with wholly good-faith intentions. Sure, there are definitely people like that involved. But there are also lots of bare-minimum jobsworths, power-tripping petty officials, corrupt self-aggrandizers, and people who bullshited their way into "expert" credentials, all operating within an institutional system rife with perverse incentives and structural limitations. In other words, they're just like every other organization composed of human beings in our society. So why would we wish to insulate them from the system of accountability and oversight that we expect to hold sway everywhere else?

> So? Congress sees the regulations passed under their authority. Why shouldn't they be the ones to call an enforcement action out? Why couldn't the fishermen petition their Representative?

This whole conversation is totally downstream of any involvement by Congress -- they have already done their job by passing whatever statutes are currently in effect. The question here is whose job it is to interpret the statutes that Congress has already passed.

Congress is absolutely free to monitor the behavior of administrative agencies, and past new legislation to expand, contract, or clarify their authority. They indeed do so semi-regularly. But then those statutes will still need to be interpreted and applied to edge cases by people whose job it is to understand the statutes, i.e. the judiciary.

You seem to be trying to factor the need for interpretation of the law entirely out of the question, and I can't even begin to comprehend that.

[unethical_ban]

It comes down to this: I don't think our system is built to withstand the level of bad-faith bullshit that corporate interests will throw at a justice system trying to overturn every regulation not written in stone by Congress. And I don't trust Congress to be able to function at all right now, much less be able to respond to the level of intervention this decision will require them to have.

Congress writes a law saying "FCC, go guarantee good access to Internet for people" and FCC says "OK, 100mb is the minimum and every ISP should offer that". You think an ISP should be able to sue, and a judge should be able to block, an FCC attempt to implement "good access to Internet" as they see fit? I don't trust the judiciary not to completely supplant or destroy the power that should belong to the executive agency. That level of review defeats the entire purpose of delegating regulatory power to the executive agency.

I get the rationale of "wait what if the exec agency does something really wild" but I think the bar that is required to strike regulations should be really, really high.

I really think I understand your position. I get your stance on normative interpretation. I think the Chevron system was the way to do things best. Maybe if we develop a framework for justices to force a legislature to reconsider the question, not to make the final decision themselves, it would be more reasonable. But judges aren't accountable to anyone.

So maybe an elected subset of the judiciary? Or a "push system" for the house to vote on all the issues that judges find. But not judges making the final call and waiting for the legislature to do something about it.

[Gormo]

> It comes down to this: I don't think our system is built to withstand the level of bad-faith bullshit that corporate interests will throw at a justice system trying to overturn every regulation not written in stone by Congress.

There's a lot to unpack here. First, I don't understand why you expect corporate interests to work hard to overturn the regulations that they themselves often benefit from, and sometimes themselves advanced via influencing and co-opting regulatory bodies.

Second, I don't understand why you think that the judicial process can't sort out bullshit from solid legal reasoning -- that's its entire purpose -- but somehow trust functionaries in opaque bureaucracies to do the same.

Finally, I don't understand why you expect that Congress would have anything to do with this. This is about who interprets the statutes that Congress has already passed, understanding that statutes will not contain detailed specifics about every regulatory scenario. Regulatory bodies will continue to do what they do, but will simply no longer be able to expand their authority on their own prerogative without being validated by due process.

> Congress writes a law saying "FCC, go guarantee good access to Internet for people" and FCC says "OK, 100mb is the minimum and every ISP should offer that".

ISPs are already able to sue and always have been. Courts are still adjudicating every such dispute. Nothing is changing in this regard.

> You think an ISP should be able to sue, and a judge should be able to block, an FCC attempt to implement "good access to Internet" as they see fit?

Of course they should! And the FCC should then be required to argue why they think the specific actions they are trying to take are consistent with the legislative mandate, with the court giving a fair hearing to the other side, and then making a determination based on their expert application of law, to determine whether the thing that the FCC wants to do is legal, completely irrespectively of whether it is effective policy.

I can't wrap my head around why you think this is bad, not even a little bit.

> Maybe if we develop a framework for justices to force a legislature to reconsider the question, not to make the final decision themselves, it would be more reasonable. But judges aren't accountable to anyone.

No, this entire matter is downstream of legislation. Congress can reconsider any question at any time, and then pass new statutes to adjust the laws. But someone still needs to be responsible for interpreting those new statutes. And that someone is the judiciary.

> So maybe an elected subset of the judiciary? Or a "push system" for the house to vote on all the issues that judges find. But not judges making the final call and waiting for the legislature to do something about it.

No, that doesn't make any sense. Congress can legislate at a million miles per hour, and pass all manner of detailed statutes, but those statutes still need to be interpreted and adjudicated, and doing so is inherently and constitutionally the role of the judiciary. No structural changes are necessary apart from restoring proper separation of powers and checks and balances, which is exactly what reversing Chevron does.

You are trying to solve a nonexistent problem with solutions that are themselves real, worse problems.

[unethical_ban]

I'm processing what's being said. Maybe the problem is me.

I've lost faith in the court system recently.

You have faith in a court system to only determine questions of legality, not policy. I don't have that. I see our federal courts as political tools, completely unaccountable to the people and whose rulings are never adjusted by the Congress. I wholeheartedly disagree with textualist/originalist readings of the Constitution.

At least a bureaucracy operates at the direction of an elected position, I suppose.

I'll have to think about the discussions here. I still like my idea of Congress being brought back into the loop to be required to respond to judicial decisions overturning regulations, to ensure the agencies can continue doing what they need to do if it is "the will of the people". You kept on saying this stuff is "downstream of Congress". I'm saying to make it a feedback loop so it must get back in front of Congress after judges make a decision.

---

EDIT: Oh and SCOTUS just gave the president absolute immunity, and among other things said that judges couldn't look at presidential intent when determining if an act is "official or unofficial conduct" because it would open the president up to endless legislation.

So judicial review is okay when it's talking about fines on boats, but not when it's about a president overturning elections or assassinating political leaders.