SCOTUS OT 2023
- Thread starter Defenestrar
- Start date
I suspect with Chevron down, they'll come after mifepristone and say the FDA doesn't have the right to regulate it since it wasn't explicitly allowed by congress...
You're not looking at this like a real capitalist ought to: Seveso Water is a much better idea, especially if all traces of actual water get filtered out to merely leave the chemical waste.
It will be bought by the kind of idiots who vote for Trump, making this a problem that will solve itself on the long run, as the number of braindead conservatives will dwindle due to consuming literal waste.
And now the rioters get a second bite at the apple.
I am guessing there will be huge uptick in Google searches for 'how to leave the US' in the upcoming weeks.
I am guessing there will be huge uptick in Google searches for 'how to leave the US' in the upcoming weeks.
Insurrection became legal a few months ago when SCOTUS declared the 14th Amendment wasn't self-executing.
Re: the Chevron decision.
I have two questions.
1) It’s been my impression that the court has been leaning this direction for the past couple of terms, slowly chipping away until they could finally carve out Chevron directly. I am not a SCOTUS or law aficionado, not my area of focus, I guess - is this impression accurate?
2) Have there been any decisions reached earlier this term that this decision either directly or potentially impacts?
I have two questions.
1) It’s been my impression that the court has been leaning this direction for the past couple of terms, slowly chipping away until they could finally carve out Chevron directly. I am not a SCOTUS or law aficionado, not my area of focus, I guess - is this impression accurate?
2) Have there been any decisions reached earlier this term that this decision either directly or potentially impacts?
Other than that one? I meant to carve out a caveat for mifepristone since it was the obvious potential. I was asking for a bit deeper than that.
Nobody has ever liked Chevron. It sometimes leads to regulations flip-flopping by administration because an ambiguous statute is interpreted by the executive branch. (IMHO it wouldn't be much of a problem if it was interpreted by career agency employees). The erosion of Cheveron has been happening for decades. Frankly there wasn't much left to it that hadn't already been carved off as an exception to the original Cheveron doctrine (Roberts quotes many of these cases in his opinion). However, many people didn't want it to go because we will always have ambiguous legislation (either in English usage, grammar, or simply lack of detail. Look at the decision in Fischer which was essentially about how much the word "otherwise" encompassed). In such a case it's nice to be able to call up agency X, Y, or Z and say: "Can I do this with my land/car/chemical plant/whatever?" That was the blessing and the curse of Chevron. You mostly knew where you stood, how close to the line you were, and how things might change with political winds.
Without Chevron, ambiguous regulations are now… ambiguous. At least until there's common law on the subject or congress updates whatever clause is in question. That's a heck of a lot of court cases where judges are going to have to rely on expert witnesses and technical reports (instead of deferring to agency employees/appointments).
Robert's conclusion succinctly summarizes the court's opinion:
Backing up a bit, the overturn is primarily based on the tension that has always stood between the Administrative Procedures Act (APA) and Chveron, Roberts introduces the APA as follows:
He continues:
I have really mixed feelings. I've been ticked off at agency interpretations as often as I've been pleased by them. I've been in professional situations where I know my knowledge, understanding, and reading of the law was better than whatever regulator/inspector was on site - but it wasn't worth fighting (in my case generally because of the dollar amounts of making the regulator happy versus lawyer costs). In a just system bureaucrat shouldn't automatically win if they're wrong about the law. But at least we knew were we stood.
Today the court provided no other test. So the only way to know the law is to go to court. And that's only the way to know the law in one district. If you cross boundaries of judicial districts you now have a legal vacuum again. At least until there's a circuit level opinion. But only until you cross circuit lines… so the only way to get a binding national precedent on every little ambiguous legal question is a SCOTUS decision. That's a huge problem because ambiguities in laws are all over the place.
Pragmatically, I expect the courts will still mostly defer to the evidence of bureaucracies simply by the fact that those agencies have the time and personnel (more or less) to develop superior data in support of their interpretation of the law, already provide public guidance, and enforce regulations. It worked for over forty years between the APA and Chevron (where the procedure was formalized). If we're lucky this will keep the trend of siding with reasonable federal interpretation while allowing courts to occasionally call BS when appointed officials are politicizing ambiguities in the regulations. However, I'm not feeling particularly lucky today.
Without Chevron, ambiguous regulations are now… ambiguous. At least until there's common law on the subject or congress updates whatever clause is in question. That's a heck of a lot of court cases where judges are going to have to rely on expert witnesses and technical reports (instead of deferring to agency employees/appointments).
Robert's conclusion succinctly summarizes the court's opinion:
John Roberts said:
Backing up a bit, the overturn is primarily based on the tension that has always stood between the Administrative Procedures Act (APA) and Chveron, Roberts introduces the APA as follows:
John Roberts said:
He continues:
John Roberts said:
I have really mixed feelings. I've been ticked off at agency interpretations as often as I've been pleased by them. I've been in professional situations where I know my knowledge, understanding, and reading of the law was better than whatever regulator/inspector was on site - but it wasn't worth fighting (in my case generally because of the dollar amounts of making the regulator happy versus lawyer costs). In a just system bureaucrat shouldn't automatically win if they're wrong about the law. But at least we knew were we stood.
Today the court provided no other test. So the only way to know the law is to go to court. And that's only the way to know the law in one district. If you cross boundaries of judicial districts you now have a legal vacuum again. At least until there's a circuit level opinion. But only until you cross circuit lines… so the only way to get a binding national precedent on every little ambiguous legal question is a SCOTUS decision. That's a huge problem because ambiguities in laws are all over the place.
Pragmatically, I expect the courts will still mostly defer to the evidence of bureaucracies simply by the fact that those agencies have the time and personnel (more or less) to develop superior data in support of their interpretation of the law, already provide public guidance, and enforce regulations. It worked for over forty years between the APA and Chevron (where the procedure was formalized). If we're lucky this will keep the trend of siding with reasonable federal interpretation while allowing courts to occasionally call BS when appointed officials are politicizing ambiguities in the regulations. However, I'm not feeling particularly lucky today.
Ideally, there'd be a reasoned approach for agency decisions—and well-scoped-out by career domain experts and backed by science. That could go a long way toward removing ambiguities, with the exception of the inevitable edge cases. In that type of instance, it would be good to have that bench of seasoned domain experts to make decisions and have solid policy to guide them. How does moving those decisions to the courts help the process? Even for well-funded litigants, it's just going to draw out the process.
With Chevron overturned bring back the lead paint! Those vibrant colors are to die for.
I’m starting a lead paint lobbying group. Send me $10 and I’ll send back some paint chips.
I’m starting a lead paint lobbying group. Send me $10 and I’ll send back some paint chips.
It's going to cause utter chaos and circuit splits all over the place, at a volume the SCOTUS isn't going to be able to address. The practical outcome is the US is going to be even more balkanized in its rules and regulations. Something Roberts apparently thinks is Jim Dandy.
Interpretation by career agency employees is even less democratic than presidentially-appointed interpreters be they agency heads or federal judges. But even still, we have no good way of getting this interpretation down to that level because what you describe would just be Chevron but deferred to specific non-appointed roles. Thanks to Roberts, we have no viable path to interpretation besides a federal court. The regulatory agencies will all need a fuckton more lawyers because they won't know whether they interpreted something correctly until they get drug before court for the 80 billionth time in some batshit Fifth Circuit courtroom.
The entire ruling is Roberts wanting courts intimately involved with the regulatory regime, not just "a little more empowered". Whether he grasps that or not, his legacy will be one of legislating from the bench.
Not to mention, a rather unexpected SCOTUS member just raked her co-workers across the coals for misinterpreting a rather technical law, and ruling poorly on that misinterpretation. Multiply this by every expert in every federal agency having to take time out of their day to explain to a judge the technical-yet-important differences in fracking in a stable geo area versus fracking near a water table, and it's going to be an even bigger time sink and shitshow.
It'll just become vibes based regulation.
If the latest EPA case is any indication, the conservatives will cherry-pick the court record and comments to get to whatever result they want. They will also use bullshit amicus briefs and additional collateral.
Have people close to me in the government, who were bracing for this.
Is the judiciary prepared for it? Sure, there were interested parties who want to make government unworkable so that they can do as they please, but this probably wasn't the method they were looking for. Will it require an army of attorneys and expert witnesses to get anything done from this point forward?
You mean the unintended consequences were overlooked, not that they weren't asking for it. Too often, "conservatives" who want a "small government" try to get a motorcycle by chopping a car in half.
I guess it's always possible to charge some of them with actual insurrection and seditious conspiracy, as they probably would have been if this lesser charge hadn't been available.
It's going to be much easier to just do something and then know it's possible to claim "I thought it was fine because Law X is ambiguous". Or "Supreme Court hasn't said I can't do X, don't like it then take it up with the Supremes".
The vast majority have criminal trespass and assaulting police as additional convictions. Their sentences will not be affected.
And the charges against Trump remain intact since his conspiracy included fraudulent Electoral College ballots and certifications.
It will be interesting to see what is wrought by the courts refusing to uphold the laws.
I was reading Bottle of Lie about pharm. industry. There are enough problem with the current FDA already. If they have to fight everything through the court system, we can expect more bad drugs circulating going forwards.
What's interesting is they didn't take away mifepristone. It's unclear what if any principle they are using to decide the difference between rules that are to be allowed to continue and those that won't.
I am more worry about drug safety in general. In Bottle of Lie, FDA was having difficult charge a foreign (India) generic drug company for fraud. FDA just do not have the resource to go after big companies, especially foreign ones. The author wrote that the "higher up" and the politicians stonewall the investigations due to the pressure of needing cheap drug and foreign relationship.
By the way, none of the executives were personal charged.
I am sure we will see the same problem with other agencies. There are always push back from fishing to mining on the regulations.
By the way, none of the executives were personal charged.
I am sure we will see the same problem with other agencies. There are always push back from fishing to mining on the regulations.
They are punting it until after the election. The plaintiffs had no standing and did not need to rule on the merits. They will not be so merciful after November, whether or not Trump wins. They may even go all out for fetal personhood.
My guess as to the principle that they will settle on is the pure concentrated essence of chaos....
Nothing can break down the legitimacy of the court system faster than not knowing what the rules are supposed to be. It's not like we have infinite capacity in the appeals courts. If the lower courts don't trust the consistency of the SCOTUS, they'll just ignore the Supreme Court and rule however they see fit. There's no way for the supreme court to enforce its will if there's mass non-compliance at the lower court level.
"They can't reverse them all"
-An old refrain of the Ninth Circuit
-An old refrain of the Ninth Circuit
It won't even be non-compliance. We'll get circuits with massive interpretation differences (looking at you, Fifth) that will flood SCOTUS who won't be able to rule fast enough.
Lead paint? Bring back glow-in-the-dark paint with actual radioactive components. Radium whitening toothpaste. Bleach as a cure for dangerous diseases!
No, wait, that last one...
Their more urgent desire seems to be taking all restraint off of environmental destruction, and putting restraint on personal liberty.
That would follow Wilhoit's axiom.
Rich people and corporations are the in-group. The hoi polloi are the out-group.Frank Wilhoit said:
I thought about @Defenestrar's idea and came up with a possibility that gets around Roberts' bullshit. It doesn't need an amendment to pass and would be something a second Biden term could push.
Create an Article III court for every agency with staffers to provide technical expertise with the mandate to interpret agency rules. It's not Chevron, but it's far better than the "every circuit's conflicting interpretation" we're about to get.
Create an Article III court for every agency with staffers to provide technical expertise with the mandate to interpret agency rules. It's not Chevron, but it's far better than the "every circuit's conflicting interpretation" we're about to get.
We'll know it's hit peak when the justices themselves are seen playing lawn darts in the grass outside the Supreme Court Building.
