"Chevron deference" primer
Glen Reynolds sorts out some of the ignorant raving about the recent "power grab" that reversed the Chevron deference doctrine. What the Supreme Court ruled is that Congress passes laws, the executive branch enforces them as written, and courts kick them back to Congress if they're ambiguous and need to be amended. If executive-branch bureaucrats find a statute's actual words ill-suited to whatever their newest enforcement crusade is in any particular year, the cure is to get Congress to use better words.The way statists are squawking, you'd think the only question worth asking is whether a particular crop of bureaucrats is pursuing a good policy. To the contrary, it's equally important how policy is set and who has the Constitutional power to contest it.This is much like the caterwauling over whether Supreme Court decisions promote good policy in a particular area of controversy. Unless the policy is enshrined in the Constitution or a law properly enacted by Congress, it's not the point in a Supreme Court decision. That Court is charged with ensuring that, if the Constitution or a statute is at fault, it must be amended legally. Not overturned by mobs in the street or jackbooted bureaucrats, but voted on by elected officials according to well-understood rules and precedents. That's the "rule of law," no matter how unhappy it makes the New York Times.
Article I, Section 1, of our Constitution:
ReplyDeleteAll legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
It would be good if the statists, in and outside government, understood that, or understanding, desisted from blowing it off. Unfortunately, they seem to be taking their cue from a premier activist Supreme Court Justice, Thurgood Marshall, who once said that he issued his ruling and expected the law to catch up.
One of my happy dreams is that an incoming President and each of his Cabinet Secretaries and Agency Directors will begin their terms by culling their respective bureaucracies by a random 50%, and then start cutting the unproductive at 10% per RIF.
Unfortunately,....
Eric Hines
I do have a problem with anyone getting absolute immunity from criminal prosecution, whenever the alleged crimes may have been conducted, or by whom. A line does need to be drawn—and I don't have any ideas on where, yet—between prosecuting a President for his criminal acts and making up crimes, à la Jack Smith and his handlers, in order to prosecute a President that some don't like.
ReplyDeleteMaybe a line drawn on consequences: the prosecutor and "senior" members of his team who go after a President or former President on some alleged criminality, on that President's/former President's acquittal, go straight to jail to serve, without parole, the mid-range sentence that the alleged crime calls for. Consecutively, if multiple crimes are charged and acquitted.
One of the questions that follow this ruling will hinge on the circle: is a criminal act an official act? Can it be? There is some case law that bars things done "under color of law;" that principle would seem to apply to "under cover of official act."
Eric Hines
IANAL but from reading and listening to a few analysis on this case it seems to me the biggest problem was the 'deference' requirement to lower courts which enabled friendly judges to give agencies carte blanche for whatever crazy rule they could define while sitting back and saying Chevron required them to accept it. It sounds like Roberts didn't just tell the TLAs to hew to the law but that courts should take an active role in determining if the regulations actually adhere to it.
ReplyDeleteWell, yes, Texan.......but now Congress-critters are in danger of actually being responsible for Government actions, which is precisely where Congress-critters do not want to be.
ReplyDeleteHave you no sympathy for them? How can you BE so CRUEL?? After PRIDE Month? Really????
Dad29 hits it on the head, that SCOTUS, perhaps with a severe eye up to the Capitol, is assuming that Congress will do its job. That hasn't been true for a long time. Perhaps Roberts and the others are only saying "Well, at least we're going to do our job."
ReplyDeletePerhaps Roberts and the others are only saying "Well, at least we're going to do our job."
ReplyDeleteWhich is good by itself, but there's more. Perhaps, by doing so, they'll begin forcing Congress to start doing its job. Especially if the Supremes take the follow-on step and start striking those vague statutes that Congress keeps leaving to the Executive agencies to flesh out as unconstitutionally vague rather than just swatting law-making regs (as opposed to law-implementing regs). With bad law struck after bad law, and the matters repeatedly sent back to Congress, they might start trying to get it right in the first place.
It would be good, too, if the Supremes revisited their precedent of the last century allowing Congressional delegation in the first place with a view toward tightening that ruling, given the modern era's abuse of delegation by all subsequent administrations.
If the national committee of 535 can't make themselves clear on a matter, it's likely (not always) a matter best left to each of the several States.
Eric Hines