[jmyeet]

This idea that the president has unrestricted ability to set foreign policy is an invention of this particular administration. In truth, powers are split between the executive and legislative branches [1].

Most notably, only Congress can declare war, which has been a real sticking point in the last century and why, for example, the Korean War wasn't technically a war (it was a "police action") and why the Vietnam War wasn't either. The First and Second Gulf Wars and the War in Afghanistan at least had explicit war resolutions passed by Congress, however misguided.

Brown pelicans typically lay three eggs. Some bird species can employ "deferred incubation" such that even when eggs are born on separate days, the eggs will hatch at the same time. Brown pelicans don't do this so the chicks hatch 2-3 days apart each. The eldest gets fed more so there ends up being a size difference. What inevitably happens is the eldest two conspire to push the youngest out of the nest. If it falls out, the parents won't feed it and it will die. Then after awhile the oldest pushes and second out. 90%+ of the time only the eldest ever fledges.

Why did I tell this story? Because it basically mirros what's going on with our government. We have, at least theoretically, three branches of government that are meant to balance each other. There has been a conservative takeover of the executive and judicial branches such as to neuter the legislative branch. This Supreme Court has both stripped Congress of power (eg overturning Chevron) and empowered the presidency (eg the presidential immunity decision that had absolutely zero basis in anything; it was simply invented). They've invented doctrines to allow them to overturn basically anything Congress does (eg "major questions" and "historical tradition"). This is a coup d'etat and the end result of the 50+ year Republican Project.

What happens next, just like the pelicans, is the courts gets neutered. Conservatives now push the "unitary executive" philosophy, which is a fancy way of saying they want a dictator, not beholden to any courts or lawmkaing body. The second chick is getting pushed out of the nest. The administration is openly defying the courts on many matters (eg Kilmer Abrego Garcia) and this Supreme Court has given them the immunity to do that.

I, personally, think we are beyond the point of no return. Electoral politics cannot possibly fix this situation. At the same time, the American empire is decline. We are going to see firsthand waht a dying empire looks like and I guarantee you it won't be pretty.

[1]: https://www.cfr.org/backgrounder/us-foreign-policy-powers-co...

[wredcoll]

> Most notably, only Congress can declare war, which has been a real sticking point in the last century and why, for example, the Korean War wasn't technically a war (it was a "police action") and why the Vietnam War wasn't either.

I keep seeing this brought up as some kind of "gotcha" point, but those wars involved conscription and billions of dollars of additonal military funding, all of which was presumably approved by congress. I find it hard to imagine a congress that is approving a draft would be averse to signing a war declaration.

[jmyeet]

It's not a "gotcha". It's just objective fact. There were no war resolutions for Korea and Vietnam.

If anything it demonstrates a more recent trend where the executive oversteps its authority to engage in military action and to bypass Congress.

As for conscription, this was enabled by Congress in WW2 by "selective service" [1]. The administration maintains the authority to draft male citizens of a certain age into the military without explicit Congressional approval.

[1]: https://en.wikipedia.org/wiki/Conscription_in_the_United_Sta...

[nobody9999]

>It's not a "gotcha". It's just objective fact. There were no war resolutions for Korea and Vietnam.

Yeah. Not so much.

While the Korean conflict was not explicitly authorized by Congress, it was tacitly approved by Congress by passing several bills that both directly and indirectly appropriated funds to prosecute the Korean conflict.

That this wasn't followed up by a vote in Congress to make that official is definitely a constitutional issue, but one that SCOTUS did not address directly.

You're quite correct that Congress didn't declare war or provide explicit authorization for the use of military force. That said, it's not quite as cut and dried as you make it out to be.[0][1][2]

Congress gave the Executive branch explicit authorization for the use of military force in Vietnam with the Tonkin Gulf Resolution[3].

[0] https://constitution.congress.gov/browse/essay/artI-S8-C11-2...

[1] https://www.lawfaremedia.org/article/korea-war-powers-preced...

[2] https://en.wikipedia.org/wiki/Youngstown_Sheet_%26_Tube_Co._...

[3] https://en.wikipedia.org/wiki/Gulf_of_Tonkin_Resolution

Edit: To clarify, I'm not arguing that Congress was correct in not providing explicit authorization for the Korean conflict, nor am I arguing that the Kennedy and Johnson administrations shouldn't have gone to Congress sooner to obtain authorization ala the Tonkin Gulf Resolution. Rather, I'm pointing out that the situation was much more complicated than you make out WRT the Korean Conflict and that there was, in fact, explicit authorization from Congress for prosecuting the war in Vietnam.

[cwillu]

The gotcha is that, given the thing is described as a war by more or less everyone in the world, clearly the power to declare a “war” has little to do with the power to start or join wars.

[Aloisius]

> Most notably, only Congress can declare war, which has been a real sticking point in the last century

Sticking point? Where in the Constitution does it say a declaration of war is required to wage war?

We didn't have a literal declaration of war for the Quasi War (1798-1800), the First Barbary War (1801–1805), the Second Barbary War (1815), any of the many American Indian wars, etc. That clearly didn't seem to be a sticking point for George Washington, John Adams, Thomas Jefferson or James Madison.

[genewitch]

Chevron decision told Congress to do its fucking job and stop delegating it to the for-profit entities the regulations are supposed to apply to, unchecked.

The story of how it made it to the supreme court is a good one, about having to pay an inspector to ride on every fishing trip...

I don't see how this diminishes congressional power, unless you consider delegate count a sign of power.

[jmyeet]

This is a conservative talking point to justify stripping Congress of power.

The whole reason Chevron came into existence is because it's impossible for Congress to pass explicit regulations for every little thing as soon as it's needed. So agencies were instead given broad legislative mandates like "keep the water clean" or "manage fish stocks" because it was impossible to enumerate every circumstance.

So for 40 years through 7 presidents (4 Republican, 3 Democrat) with both parties controlling the House and the Senate at different times, Congress passed laws with Chevron in mind. Congress had the ability to roll back Chevron and declined to do so.

The backers of overturning Chevron know it's impossible. That's why they did it. It's just unadulterated greed to deregulate so companies can wantonly pollute the water and overfish without any sort or oversight, compliance and repercussions for slightly higher profits... temporarily. And when there's a mess that needs cleaning up, they'll get the taxpayers to pay for it.

[rayiner]

Filling in “details” was the conceit of Chevron, but that’s not how it was used in practice. The agencies were creating vast new programs from whole cloth and demanding that courts defer to their interpretation of the statute as allowing it. Moreover, it has the effect of making it impossible for the legislature to count on the executive actually honoring compromises and trade offs baked into the legislation.

[abduhl]

>> The whole reason Chevron came into existence is because it's impossible for Congress to pass explicit regulations for every little thing as soon as it's needed. So agencies were instead given broad legislative mandates like "keep the water clean" or "manage fish stocks" because it was impossible to enumerate every circumstance.

This misunderstands Chevron and the effect of its abandonment. Chevron stood for the proposition that the executive branch could generally interpret laws without judicial review (subject to a minimal standard which was nearly always met). What this meant in practice was that any agency could change its view on what the law means (and therefore change what the law is because courts were generally required to accept the new interpretation) whenever it wanted and that new view was binding law. This undermines two core principles of the American system: separation of powers (the judiciary says what the law is) and the rule of law (laws should be applied equally and consistently).

Eliminating Chevron returns us to the proper state of the law: the executive branch proposes a reading of the law, the other side proposes another, and an independent court considers both and states what the law is. And that’s the law going forward. It cannot be changed absent legislation. Congress passes a law, the judiciary says what the law is, and the executive executes it. If the executive wants to enforce a different law then it must get the legislative branch to pass that different law.

This is not a conservative talking point, it’s a talking point for anyone that thinks the President is not a king. It just seems like a conservative talking point to you because it was overturned during the Biden administration. Recall that Chevron came to be because of a Reagan administration interpretation.

Consider what the state of reality would be if Chevron remained good law today under the Trump administration. Trump’s interpretation of a statute would be what the statute says.

For example, 8 USC 1401 provides that “The following shall be nationals and citizens of the United States at birth: (g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 288 of title 22 by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person (A) honorably serving with the Armed Forces of the United States, or (B) employed by the United States Government or an international organization as defined in section 288 of title 22, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date;”

Do you really want the Trump administration to be able to what any of the ambiguous terms mean in this provision? What do you think Trump’s interpretation of the “geographical limits of the United States” is? What about what “honorable service” means?

[jmyeet]

This is incorrect. Chevron deference wasn't giving the executive branch sole power to interpret ambiguous statutes as you claim (despite your scary example). The so-called Chevron deference doctrine was simply that the Supreme Court ruled (~40 years ago in the Reagan administration) that if an agency is responsible for administering a statute that's ambiguous, that agency's interpretation should be deferred to.

But the real problem comes in because 40 years of laws were written both both parties with Chevron deference in mind. Not only did Congress not take action to overrule Chevron, consistently for 40 years, they intentionally wrote ambiguous statutes to give agency's the power to interpret those statutes, mostly because enumerating every possible circumstance was impossible.

Take managing fish stocks. What fish stocks? When should fishing seasons be? What's the inspection mechanism? How are licenses and quotas issues? How are they enforced? How should all this be reported to the public, Congress and the president? What about fish stocks that border international waters? How should they be managed?

Chevron acknowledged what was already happening: it was impossible to write legislation that way. Congress didn't have the bandwidth to initially write it, let alone maintain it as circumstances change.

The Supreme Court (rightly) recognized that without Chevron deference it would be impossible to an agency manage anything because any ambiguities or any simply unofreseen gaps would be used to neuter the agency in the courts. It made it impossible to have such agencies and that's the whole point of overturning Chevron. The very wealthy don't want Fedearl agencies. The whole thing is a libertarian wet dream and over the coming years we'll see the consequences as the same people poison the water supply and the food supply, overfish alal fishing stocks, crash the economy through unregulated financial markets and so on.

[abduhl]

>> The so-called Chevron deference doctrine was simply that the Supreme Court ruled (~40 years ago in the Reagan administration) that if an agency is responsible for administering a statute that's ambiguous, that agency's interpretation should be deferred to.

This is a misstatement of what the law was. Under Chevron, the agency’s interpretation MUST be deferred to, not should. This is an affront to the separation of powers.

Agencies are not neutered. Nor are they prevented from interpreting ambiguous statutes post-Chevron. They are prevented from being the final say on interpretation. This is good, just, and in line with America’s constitutional regime.

[BeFlatXIII]

> I don't see how this diminishes congressional power

Congress is too incompetent to assert its power.

[AnimalMuppet]

The President and the courts didn't neuter Congress. Congress neutered itself.

Over the past several decades, Congress has been less and less able to pass legislation, less and less able to work with itself, eventually even unable to pass a budget (which is their most fundamental, basic duty). How many years of the last decade has Congress passed a budget? That would have been unthinkable 50 years ago.

Congress is broken, not because the President broke it, not because the courts broke it, but because party politics and the primary system broke it.

The President has ruled more and more by executive order, partly by overreach, and partly by necessity, because Congress can't or won't do their job.

I don't think that the courts stripped power from Congress by overturning Chevron. They stripped it from the executive branch.

[jmyeet]

The courts are mostly responsible for breaking Congress. Why? Citizens United. This is the case that decided "money equals speech" and allowed for unlimited dark money to be spent buying Congress.

[AnimalMuppet]

I would say that plus Roe v. Wade. That created for people to be ideologically interested in controlling the Supreme Court. And Congress was a way to get that. So Roe v. Wade created the reason, and Citizens United created the means.

[BeFlatXIII]

Overturning Chevron isn’t stripping Congressional power so much as it’s forcing Congress to explicitly use its power not to lose it. De facto, it does strip Congressional power, but that’s solely because Congress is too incompetent to fulfill its role.

Likewise, it also strips Executive power. Executive agencies can no longer fill in the obvious gaps in what Congress passed.

[jiggawatts]

Well said! I also would like to note that something similar happened during the slow decline of the Roman Empire, where it morphed from a representative republic with a powerful senate to a dictatorial regime with one or at most three men in charge.

The only solace one can take from that historical precedent is that the full collapse took centuries, far longer than our lifetimes.

Our grandchildren may live in a time of the New American Empire that is ruled by an Emperor Trump III. It'll have a strange tradition of emperors painting their faces orange in the same manner as Roman emperors had a tradition of wearing purple robes.