How to Think about Chevron

Background

When Congress passes laws, the laws don't spell out every detail of how it must be carried out. It would be tedious, for example, to say what font should be used when posting a job opening to expand the bureaucracy to enforce the new law and at what time and location the interview should take place. As a result, Congress depends on the Executive Branch to fill in those necessary details.

Further, while the details already described are pretty obvious and uncontroversial, Congress sometimes leaves important details with significant ramifications unstated. For example, perhaps legislation directed the executive branch to construct a building to protect the vehicle fleet of the FBI and all monies needed.

Because it's unstated, the FBI would be in its power build a 50 story building, with 25 levels underground. Before Chevron, courts were the arbiter of how much discretion the executive had when interpreting legislation. After Chevron, however, courts forfeited much of that power to the president and his administration

As with many other expectations and powers, though, the executive branch will always want to push the boundaries of that discretion as far as they can go, and sometimes farther. The question before the court now, is where is that boundary.

In the original Chevron case, the Supreme Court basically concluded that when Congress wrote a statute with some ambiguity, as long as the executive's interpretation was not obviously wrong and was reasonable, it would be acceptable.

The details of that case were about what Congress meant when they said "stationary source" of pollution. Did they specifically mean the boiler that produced the pollution, or did they mean the entire factory? The Court said 'we can't know what they meant; there's not enough information. We, therefore, defer to the executive to decide.'

It was not an unreasonable decision at the time. The real problem came because the executive branch does what an executive branch does and abused that deference. The first case had to do with the definition of "stationary source." Congress really could have meant either one. But in the current case before the Court, the question is less about an ambiguous term than about an unmentioned power. The law at the center of the case is the Magnuson-Stevens Fishery Conservation and Management Act (MSA) of 1976. It decreed that fishing boats had to allow observers when they went fishing to ensure the fishermen were following all the laws.

The Federal Government, though, in 2013, decided that the fisherman should not only allow the monitors on their boats, but also had to pay their salaries, even though that was never mentioned in the law or alluded to, or done in the nearly forty years since the law was passed.

The National Marine Fisheries Service says this falls under Chevron deference because the statute is ambiguous about who pays for the observers. In reality, the statute is not ambiguous, it doesn't say anything on the matter. This is quite a different question on how to interpret "stationary source." It is already an element of the law that the president has to enforce, but to enforce, it has to have some definition of stationary source.

The underlying question is one of who gets to interpret legislative ambiguity? Courts or the executive? The Constitution does not provide guidance here.

Atlantic Piece

https://x.com/nicholas_bagley/status/1750168859259101513?s=20 (@nicholas_bagley; 2024-01-24 9:49am) "Conservative justices on the Supreme Court want to dismantle Chevron, believing that deference is improper because courts—not federal agencies—ought to say what the law is. " -that's part of it, but also because the administrative state is stretching laws beyond their original intention --CO2 greenhouse gas --student loan forgiveness --mask mandate

Use cases where courts struck down republican administrative decisions

"Here’s the basic problem. When it passes a law, Congress usually gives implementation authority to some federal agency or other. But Congress can’t anticipate every eventuality, nor does it have the wherewithal to address every difficult question that may arise. Often, Congress chooses to delegate in broad strokes to the executive branch, which can move with relative dispatch and greater expertise."

THis is not the "basic problem". There are many competing issues here, and this is an overly simplified version. Sometimes, yes, Congress delegates in broad strokes. That's less of an issue here [[can I get some support on this?]]. What's more of an issue for conservatives is when the executive branch ASSUMES that mantle, like with CO2, and student loans. There are three separet ways executive branch can act: 1) assume unspecified details that are necessary to carry it out. To create the EPA, they have to hire employees, to hire employees they need to post jobs somewhere, to post jobs somewhere they need to write a job description. That is not all spelled out in legislation but is reasonable to do. 2) create the unspecified details that Congress say for them to create. This is the one Bagley is referring to. 3) There's also, as in the CO2 and mask mandate case, creating new rules that were never really intended but the executive branch can "interpret" into existence.

"For him and at least some of his colleagues, getting rid of Chevron would put legal interpretation back where it belongs—in the courts." --think about this more. is it true? Is this what Gorsuch wants? "The lesson that agencies actually learn tends to be very different. They lose so regularly, and for such a wild and whirling array of reasons, that the outcome of a lawsuit, from their perspective, looks pretty random. No matter how many pages they spend defending their rule or how carefully they conduct their legal analysis, they may still lose, and often for reasons that strike experts in the field as idiosyncratic or baffling. You don’t correct a dog’s behavior if you smack it at random intervals. You just make it cower in the corner." -what a weird paragraph. Is it even true they lose regularly? I do not think it's true that the bureaucracy is concerned about being challenged and losing. And if it is, isn't the whole artile pointless then, because they're already subjected to random smacks? "So, too, with agencies. In the face of uncertainty, they survive by channeling their energies into activities that won’t provoke litigation—which is to say, activities that won’t ruffle anyone’s feathers. If agencies feel they must do something that will draw the courts’ attention, they devote scads of time and money to compiling the strongest possible record, even if doing so isn’t a good use of scarce resources. Hypercautious agency lawyers gain influence at the expense of policy experts. Agencies grow even more skittish and defensive—they become, in a word, ineffective." This is not happening whatsoever At the most basic level, there are two questions--who should resolve true legislative ambiguity (congress, the president, or judges), and how does one separate illegitimate interpretation from reasonable interpretation? Who should challenge? What's difference between major questions doctrine and chevron? My Related posts: https://x.com/ChrisOldman4/status/1615332586838175746?s=20

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How to Think about Chevron

Background

Atlantic Piece

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