Why the hell would I bother to give deference to a damn evil oil (pronounced ohl) company? Well, Chevron deference has very little to do with oil, and nothing to do with genuflecting to a multi-national molester of Gaia. Chevron deference refers to the measure of how much a court should defer to an administrative agency’s interpretation of an ambiguous statute when a case hinges on the ambiguity.
As a trivial made-up example, let’s say that an employment law states that the “most senior” employee in a department is entitled to wear a crown in the office, enforceable by the NLRB. (yes, it’s a stupid example… so sue me) The NLRB creates regulations about what a crown is, what wearing a crown means, how to break seniority ties, etc. Of interest to us is the fact that the phrase “most senior” is left ambiguous by the statute. “Most senior” may be interpreted to mean oldest by age. “Most senior” may also be interpreted to mean the longest tenure at the company. Assuming that there is no clear statutory guidance to resolve that ambiguity, it’s up to the NLRB to determine what “most senior” means as they enforce the statute. The NLRB creates a regulation stating that “most senior” is by age. Years later, Sandy, an employee of Top Hats R Us files a complaint with the NLRB about the company’s blatant violation of the crown law. The NLRB sues Top Hats R Us for violating the crown law. Top Hats R Us rebuts by asserting that they followed the crown law. They provided the crown to Latitia, who has the longest tenure at Top Hats R Us. The NLRB counters back that “most senior” means oldest, not longest tenured.
The court is placed in an interesting bind. How do they interpret the statute? Perhaps the court is inclined to agree with Top Hats R Us that “most senior” means longest tenured. Perhaps there’s some weight to be given to the NLRB’s interpretation of the statute given their administrative role. In Chevron v. A bunch of Hippies, the SCOTUS answered this question once and for all (lol).
If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. Sometimes the legislative delegation to an agency on a particular question is implicit, rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.
Well, this may seem like a pretty easy decision for a libertarian. Either an agency gets to define the terms, or the people get a say in the interpretation of the terms. This takes some of the power out of the hands of the government. It’s very easy to over simplify the libertarian view on Chevron deference as “bias toward the agency means bias toward big government.”
However, this line of thinking is wrong! Chevron deference is a separation of powers issue that requires a deeper analysis than a superficial “government bad”drive-by. If you view Chevron deference in the lens of administrative agency v. private citizen, you’re already heading down the wrong path. Chevron deference is about establishing the border between the executive branch and the judicial branch. It’s not overreaching administrative agency v. abused private citizen. It’s overreaching administrative agency v. overreaching activist court. This is Marbury v. Madison type stuff. Ilya Somin writes:
As a general rule, deference to agencies tends to promote a pro-regulatory agenda, whether of the right or of the left. But there are notable cases where it might instead promote deregulation. It is worth remembering that Chevron itself deferred to a Reagan-era agency EPA policy that liberals thought did not regulate industry stringently enough. The plaintiff challenging the agency was the Natural Resources Defense Council, a prominent liberal environmentalist group. Ironically, Neil Gorsuch’s mother, Anne Gorsuch Burford, was the EPA administrator at the time the lawsuit began. The fact that his mother’s agency ultimately won the case evidently has not prevented Gorsuch from wanting to overrule it.
The separation of powers argument against Chevron deference is a strong one. Critics claim that the judicial branch unconstitutionally abdicates its judicial power when it defers to an administrative agency. Somin explains:
Article III of the Constitution gives the judiciary the power to decide “all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.” Nowhere does the Constitution indicate that federal judges are allowed to delegate that power to the president or to the bureaucrats that work for him in the executive branch.
The legislature makes the laws, the executive branch enforces the laws, and the judicial branch interprets the laws. To be mixing and swapping these powers between branches is to undercut the fragile balance crafted by the founders. Cutting down to the core issue at hand, when the enforcement power of the executive branch requires some minimum amount of interpretation of the statutes that it enforces, how much of that interpretation is covered under the umbrella of the enforcement power, and how much is subject to reinterpretation by the judicial branch using their interpretation power? Justice Gorsuch has a very simple answer… all of it is subject to reinterpretation. This seems on first blush to be a fairly obvious statement. Where a branch is, by necessity, stepping on the toes of another branch, it would seem obvious that the other branch would have power to override the decisions of the overreaching branch. Chevron runs against that simple principle, thus Chevron is bad law.
Well, you may ask, how is this even a controversy? It seems fairly cut and dried. It’s not.
The Court [in Chevron] gave three related reasons for deferring to the EPA: congressional delegation of authority, agency expertise, and political accountability.
Chevron itself involved a decision of the Environmental Protection Agency, an executive branch agency. With regard to executive branch agencies like EPA, or, say, the Departments of Commerce, Labor, or Transportation, it may be natural, as Justice Stevens did, to refer to the “incumbent administration” and to invoke the chief executive’s direct accountability to the people.
But not so with the so-called independent agencies like the FCC, SEC, FTC, or the NLRB, with their potent brew of combined quasi-executive, quasi-legislative, and quasi-judicial powers. Unlike the single heads of executive branch agencies who may be terminated at will by the president, the independent agencies’ members serve fixed, staggered terms. And the prevailing view is that they may be fired by the president only for good cause.
There are strict rules for holding agencies politically accountable, especially the independent agencies. The President, on a whim, cannot clean house at the EPA or the SEC. These bureaucrats may be even more fully insulated from the political winds than the judicial branch… a branch set up to specifically be insulated from politics.
Quickly addressing agency expertise, I’ll say that as a person who has to deal with an expert agency on a daily basis (the USPTO), agency expertise is vastly overrated. If you trust the cop pulling you over to know his 4th and 5th Amendment jurisprudence, then maybe this “agency expertise” thing works for you, but for those of us in the real world, it’s laughable that the bureaucrats at these various alphabet soup agencies could be called “experts.”
Another motivation discussed by the case was Congressional delegation. Can Congress even delegate their lawmaking authority? Is that Constitutional? Facially, no:
The non-delegation doctrine, grounded in the separation of powers, arises from the very first word of the Constitution, after the Preamble: “All legislative Powers herein granted shall be vested in a Congress of the United States ….” (emphasis added). Taken at face value, that clear a statement would seem to preclude much of the “lawmaking” that goes on every day in the 300 and more executive branch agencies to which Congress over the years has delegated vast regulatory authority.
However, FDR, riding on the coattails of Woody “The Real Lizzy Warren” Wilson and Teddy “Bloodthirsty Sociopath” Roosevelt (go read about them), did a number on the Constitution with his judicial intimidation tactics, including the non-delegation doctrine. Hell, how are these independent, legislatively controlled executive administrative agencies allowed to exist? Well, when you scratch the paint away, you’ll find a “living Constitution” argument:
[This idiotic law review article] contends that the Founding Fathers made the Constitution flexible enough to meet administrative exigencies and did not intend to leave the enforcement of all laws to the President
Comments
127 responses to “A libertarian analysis of Chevron deference”
/raises hand
Professor Kingsfield, I have a question…
To my mind, the issue is less of separation of powers than continuing clear violations of 10A with the universal figleaf of Commerce Clause.
400+ federal agencies suggests you may be correct.
Chevron deference refers to the measure of how much a court should defer to an administrative agency’s interpretation of an ambiguous statute when a case hinges on the ambiguity. – not at all. I would say ambiguous statute should be considered invalidated /repealed until no longer ambiguous. I cannot see how it can be anything but abuse of power
It can be and has been proven with formal logic that it is impossible to make a law that is not going to be ambiguous in the face of an unbounded domain of input – that is to say, in the real world. The seniority is a simple example of this, but this happens *all* *the* *time.* Often in much more complex and unforeseeable circumstances. The issue is what happens when there is ambiguity. In normal law, there is a well developed set of canons – including the canon of lenity and void for vagueness doctrine if the ambiguity is too great. But for lesser levels of vaugeness, the law isn’t and shouldn’t be scrapped. Judges have a well developed process for resolving those ambiguities.
The issue with Chevron is that it’s special pleading. When we are dealing with agency interpretation of their associated laws (Chevron) or their own regulations (Auer deference, which we should get some clarity on soon), the standard is “chuck that well-defined and functional shit out the window and just go with whatever a career bureaucrat says.”
Judges have a well developed process for resolving those ambiguities – i am unconvinced. if the laws were few and clear there would be some ambiguity maby but not great, excessive ambiguity comes with to much government. Also these regulatory laws are not like standard do not steal laws.
The first thing we do, let’s kill all the lawyers.
Stated by Dick the Butcher, who wanted to use the power of the state for his own personal power, and he knew that the apparatus of the court would be a check on his ambitions…
In any case, this ambiguity and determination cycle was alive and well back in common law England, which had a much smaller list of crimes and regulations. Its just how the law works.
then have the courts solve it and not defer, I am not a lawyer but I cannot see how one can be expected to follow an ambiguous law
Good article. It strikes me that the Chevron deference gives anyone with any accountability an out.
Pictures will be needed to make a fully informed decision.
If “most senior” is on the basis of age, isn’t that age discrimination?
NLRB replies — “No, because shut-up!”
That’s worse than “No, because REASONS.”
I thought it was formulated as ” ‘Shut up,’ they explained.”
Ok, strip away the age issue and use another McGuffin. What is the group for which seniority is determined? Is it company wide (airlines pilots) or job site (timber mill “mill seniority”)? Does someone lose their seniority when transferring to a different location? How about from one subsidiary company to another? How is seniority handled for a break in service? How about for childbirth, illness, or military service? Or acquiring an independent company and merging the workgroup? Do they keep their seniority from the previous company?
Great Article. I never heard of Cheveron deference before.
At the beginning I said to myself, “The legislature shouldn’t make laws that setup agencies to fill in the blanks that the law made.”
Then, you brought us there.
Yeah!
This sounds good in theory, but agencies can and should have fine-grain control over things. A law that specifies that some form is filed within 3 months of some event is reasonable. The agency can then publish a mailing address, fax number, email address, and API for receiving the form. You don’t want a fax number, or, heaven forbid, an API enshrined in law do you?
On the other end of the spectrum, a law that says “Make Milk Great Again” and leaves the agency with complete and unfettered control over milk production, labeling, taxing, etc is obviously bad.
The best balance is some line in between. Someone has to draw it, even in the most mini of minarchist states. Chevron says that a bureaucrat (or policia) draws it. Common law tradition says a judge should.
“You don’t want a fax number, or, heaven forbid, an API enshrined in law do you?”
Don’t see where that could go wrong.
Please illuminate me on where you think that could go wrong (surrounded by the backdrop of actual agency constraints like the administrative procedure act.)
I think you misinterpreted my agreement that a Fax # or API enshrined in law would be a terrible idea.
Though in my mind those would be considered implementation details, rightly considered to be in the domain of the Executive.
I did. Thanks for the correction.
NP we all have to take turns playing the person to spar against.
That may be well and good, but the legislatures now intentionally leave these blanks (that they know won’t be popular) for some UCS type character to fill in and enforce.
Also, maybe they don’t need to make so many laws, thus not needing such large administrative agencies to see them carried out.
I’ll be here all day people, don’t forget to tip your waitress.
Yes, I know. Chevron defense incentives these kinds of ambiguities. Judicial determination, along with voiding of laws for vagueness, would incentive congress to make laws more clear instead of less.
Congress made the law, now let them enforce it.
The best balance is some line in between. Someone has to draw it, even in the most mini of minarchist states. Chevron says that a bureaucrat (or policia) draws it. Common law tradition says a judge should.
Yep. The judge should, and the legislature should do their job and change the law if the judge misinterprets.
As this article took shape, it leaned more and more in the non-delegation direction. Mainly because courts have put their stamp of approval on these blatantly unconstitutional independent administrative agencies. However, I wish I had the time and patience to talk in depth about Chevron and Auer deference without succumbing to the tidal pull of the more basic constitutional issues.
Seniority should obviously refer to the job title. A Senior Vice President is clearly senior to a mere Vice President. It’s in the freaking name!
I don’t know i think it should refer the the Most Manly. As in the most like a Señor.
Muy macho!
I think the other big problems with Chevron is that the courts usually take the agencies word for it when a law is ambiguous. That’s about 95% of the game in a lot of cases (but not all.) Everyone knows if you teach a child that any time they are a little confused you’ll swoop in and give them what they want, you are going to get a child that learns to be confused. Its even worse with lawyers. Strategic confusion is the expected, and I say observable, response to Chevron.
I don’t think Chevron is even needed at all. The point is that the courts should defer to agencies who have the best information and Top Men. Well, if that sort of thing really is true, and if it really does lead to the best interpretations…. THOSE INTERPRETATIONS WOULD WIN IN COURT. There’s no canon of “deference to sound logic,” because you don’t need it. That’s what courts do. Most deference is isomorphic to the ur-statement “We know you can’t win on the merits, so we are going to put the thumb on the scales.”
The government agencies don’t need thumbs on the scale. They already have an infinite budget, people working full time around the clock, and access to the best lawyers in the country. If all that can’t be marshaled into an argument to beat some will-writing family lawyer from Topeka who got roped into a rancher’s spat with the BLM, maybe they shouldn’t win…
“and access to the best lawyers in the country.”
*chokes on coffee, splutters*
Um…not in my experience. They have dedicated lawyers – in the sense that they can spend all their time on stuff, without worrying about recording hours, billing, etc… but don’t mistake that for quality. I know a whole lot of private sector lawyers I would rather have than some GS-13.
/former gubmint lawyer
IANAL but wasn’t this the entire premise for the defense of Obamacare? I’m thinking of the application of subsidies to people signed up on the federal exchange specifically.
If you read the law front to back you’re logically excluded from providing subsidies to the federal exchanges by the definitions. The section defining state exchanges is explicitly called out for eligibility for subsidies, the separate section defining the federal exchange is not mentioned. If you read the law from end to front through the lens “congressional intent” and call any undesired outcome ambiguous then it makes sense (oh, subsidies are to be given out…people signed up on exchanges get them but one type isn’t mentioned? I’m confused).
Dammit. I have been looking forward to this article for a while and now my senses are too addled by the devil juice to read it carefully and comment thoughtfully.
I will take a nap and come back. Also, having to deal with three property tax collectors today. Why does this get dumped in my lap every year?
Well, the Chevron offense is illegal, so maybe so should be the Chevron defense?
OT from earlier dead thread.
I strongly recommend that any Glib going to see “They Shall Not Grow Old” stick around for the 30 minutes of movie after the credits. It is a fascinating discussion on how they actually researched and made the movie; plus it has one of the most haunting scenes of the entire picture.
I find Chevron to be more expensive than other gas stations so no, I will not give them deference.
You should try Petrom. Good stuff.
Sounds foreign. Don’t they only sell in liters? My Freedom Truck only takes gallons.
Liters are better. Moe streamlined. Gallons are big bulky ugly.
Gallons are cheaper as you are buying in larger quantities.
I will have you know gas is 10 cents a liter here quite cheap
**Slurps directly from a 3-liter bottle of orange Faygo**
drink sugar to own the Europeans
As long as you don’t spell it ‘litre’, I’ll accept it.
You mean stronk, like bull.
https://i.imgur.com/4t8s4MF.jpg
This was in the sidebar.
That is funny.
I saw this in the sidebar. Pretty cool.
Gallons? Mine admits only hogsheads.
Butts and tuns
Gas for vampires.
The NLRB sues Top Hats R Us for violating the crown law.
I’m pretty sure I messed up the procedure here. I think it would be THRU suing NLRB for levying a fine for violating the crown law.
Amendment XXVII: In the case where the meaning of a statute is unclear, the disputing parties will resolve the dispute via a game of Ro-Sham-Bo.
Am I the only one who grew up with a game called roshambo where the game involved kicking each other in the shins until one person gives up? I mean I know I grew up in pretty blue-collar setting, but I can’t be the only one who spent 25 years of his life thinking roshambo=shin kicking, right?
Wait, it doesn’t? That was the point of the joke.
Wikipedia thinks its rock-paper-scissors.
I like the fact that your amendment is apparently ambiguous to the point of being an auto-nullity. I would vote for this amendment. For the lulz.
It would be too easy to game the system by being represented by Oscar Pistorius.
https://media.giphy.com/media/xT0xeJpnrWC4XWblEk/giphy.gif
roshambo
a game; to kick each other in the balls over an object, last one standing wins.
https://www.urbandictionary.com/define.php?term=roshambo
I’ve been searching for the South Park clip but can’t find it.
Robert Smith of the Cure wins.
OT: We just have to do it. ¯\_(ツ)_/¯
Where do you even begin with this stupidity?
Un-fucking-believable, this guy
Not only should we not leave Afgahnistan, we should have been there a decade earlier! And if you don’t think so, that’s just an impulse. You haven’t actually thought out that position for the last 20 years.
Christ, what an asshole.
I have deeply considered opinions. My opponents have only impulses. How lucky for me.
Shhh, the adult in the room is talking.
“They must think that President Obama was wise to withdraw troops from Iraq in 2011 and allow jihadists to reconstitute as ISIS”
You must be referring to how Mr. Obama armed, and created the environment for which ISIS could thrive in Syria? Cause that sounds an awful like intervention. Like what you are suggesting. But go ahead and be a mendacious twat.
For talking about “impulses” this asshole can’t even come up with a competent and coherent argument.
“They’ll presumably stay mute if al-Qaeda, ISIS, or some other group launches an attack on America that’s been planned in one of the countries from which we’re now withdrawing”
By this logic, any attack that ever happens means the US needs to have a troop presence in the country where it was planned, forever! Forget the fact that Saudis were mostly behind 9-11
“And surely they’ll not be concerned when the next wave of fleeing refugees hits the West.”
Where did these Syrian Refugees come from? oh yeah, the Syrian Civil war, that must have started because the US was busy not intervening right? US was all woah, we don’t want Assad removed…
By this logic, any attack that ever happens means the US needs to have a troop presence in the country where it was planned, forever!
Indeed. I guess that means we should’ve permanently occupied Mexico. So much easier and more efficient than a punitive expedition.
*reads the fucking article*
Nice write-up. Thanks, Mister Mnster.
And a serious country understands that messy wars with elusive victories still have to be fought.
I said, “Shrink, I wanna kill. I mean, I mean, I wanna KILL. I wanna see blood and gore and guts. Heaped dead burnt bodies…”
Kid, have you ever been arrested?
+ Group W bench
This is actually an excellent article by Reason today:
http://reason.com/blog/2018/12/27/it-sure-looks-like-this-obamacare-progra
Some of their articles over the holidays have been questionably researched, but this one seems well done.
Europe: Populism and the agony of the elites
This conforms with Leaps Lens for Understanding 2018: The Elites aren’t terribly elite, and are holding onto their position via power plays instead of merit.
It would help if the elites actually were successful in governance. The hoi polloi are not happy with the way things are going and it’s not because of the various isms.
It occurs to me there are many people, (Tom Friedman being Exhibit A) who would like nothing more than to see abject deference to a permanent entrenched Mandarin class of Top Men, who are tasked with interpreting the whims of the more enlightened elements of the mob.
This sounds good in theory, but agencies can and should have fine-grain control over things. A law that specifies that some form is filed within 3 months of some event is reasonable. The agency can then publish a mailing address, fax number, email address, and API for receiving the form. You don’t want a fax number, or, heaven forbid, an API enshrined in law do you?
I would start at the legality/reasonableness of having any laws that require some sort of form to be filed. If you start from the premise that these sorts of regulatory laws are not constitutional, then the need for the sort of fine-grain control you describe disappears.
A proper reading of the Commerce Clause would vaporize most legislation and their dependent agencies and regulations.
But it would give us the basis for RKBA reciprocity…
Scratch out “but” write in “and”
Wouldn’t that be the full faith and credit clause?
I say this to you because I know that you are a smart dude, so don’t take it as an insult to your intelegence, but
“I would start at the legality/reasonableness of having any laws that require some sort of form to be filed.”
This argument is the libertarian mind killer. It is a short-cut for a libertarian away from thinking and into erroneous confidence. Its a hack by your lazy brain to get out of the real work, and that’s how all brains work, if you let them get away with it.
I ask you to slow down and think this through for a second. Not only are form-based and deadlined iterations constitutional, they are a Really Good Thing from a libertarian POV.
You are talking about constitutionality, so we are out of the out-and-out anarchism space. So there’s at least a government, even the mini-est of minarch government. In those situations, normal citizens *will* have interactions with the government. This is unavoidable. Maybe its deed recording. Maybe its responding to court action. Maybe its interacting with law enforcement that reasonably believe you are a totally innocent witness to a crime. These are all things that could fall under even the most Lochean of night-watchmen government.
So given that these are going to occur, what format do you want them to take place with? No forms filed by the citizen? Ok, so we’ll just let the government functionaries oral memory be the official record? Or they can take their own notes and that will be the official record?
Executing official business via official form is not done to protect the government. It is done to protect the first party, so they have a written record of transactions, which are required for judicial oversight of government overreach. It is also done to protect third parties, so that they have a view into the transactions that they are not a part of.
Leap, all of the items you described are local government functions. I am talking about regulatory bodies set up at the Federal level as being unconstitutional. There should not be any Federal law requiring a citizen to submit a form. In theory, the Federal government works with the states. The states work with their citizens. Now we have the Federal apparatus bypassing the states to tax and manage citizens directly. We’re watching this same thing happen in the EU.
I think that’s fairly cut and dry at the Federal level. There’s certainly much more depth to discuss at a local and state level.
Executing official business via official form is not done to protect the government.
No, but it is done often enough to punish the citizen. As if often repeated on here, the process itself is the punishment.
Double check your constitution at including Article 1, Section 4, Section 8.1, 8.3 (including the original public meaning), 8.4, 8.6, 8.7, 8.8, 8.9, 8.10, 8.12, 8.13, 8.14, 8.15, 8.16, 8.17, 9.2, 9.4, and 9.6; Article IV Section 2.2; Article VI.1, Amendment 3, 4, 5, 6, 7, 8, 14, 15, 16, 17, 19, 24, and 26
This is just objectively false.
I’m not seeing anything through the end of Section 8 that disputes that notion. True, the sovereignty of states is not as strong as it would have been under the Articles of Confederacy, but management of citizens was largely delegated to the states even in the watered down version of our Constitution.
We are straying from the constitutionality of Federal regulatory bodies designed to govern individual citizens. You must have inadvertently skipped over section 8.2 which makes the Federal role clear in commerce.
Regulatory bodies do not exist to govern the actions of individual citizens.
You are thinking of 8.3 (though you are right 8.2 would require transactions to be completed on documents,) which I have listed.
I don’t think you know what the original public meaning of making commerce regular among the several states means. Its doesn’t mean the states buying and selling things are made regular. It means private individuals selling across state lines is made regular.
It means private individuals selling across state lines is made regular.
Yes, largely through regulating the states to prevent state-level regulations that stifle such commerce from occurring (such as tariffs at the state level).
We had an entire war over defining the role of Federal government. Many citizens fought for their home state because the idea of a Federal overlord was alien to them. While exceptions can be found in Federal interaction, the Constitution was not designed for the Federal Government to be all-powerful over both the states and the individual citizens. It never would have been ratified by the states.
True the 10th Amendment is a pale shadow, but it did exist for a reason.
You are right that it was probably understood to prevent outright prevention of any trade good. But when you say that it was for regulating the states and not individuals, that’s just objectively wrong. A good place to start on this is The Original Meaning of the Commerce Clause by Barnett. It includes examples of understanding of the terms being applied to private actors.
the Constitution was not designed for the Federal Government to be all-powerful over both the states and the individual citizens.
Right, it’s a dual sovereign system. However, federal supremacy has been recognized since very early on. Heck, the Constitution says:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
However, this presumed that the fedgov stuck to the Constitution. It’s the beauty of the Constitution. “Here are a bunch of enumerated powers where the FedGov is all-powerful. Here is the 10th Amendment that gives all power for everything else to the States and the People.”
The Progressive Era ended the Constitutional Republic here in the US, but they’ve kept the ruse going for almost 100 years, because the Constitution is still very popular. However, the transactional (Social Contract) nature of the Constitution is lost to history. Limited, enumerated powers were the tradeoff for absolute supremacy over those specific powers.
Leap, fair enough. Thank you for the book recommendation. I’ll add it to the amazon list.
Trsh, certainly the Feds have supremacy but this wasn’t supposed to be limitless. Until the Civil War, a state could always have decided to leave the compact if the Federal government became too overbearing. Once the right to withdraw was forcibly removed, states became largely powerless. Also receiving that sweet federal lucre didn’t help.
a state could always have decided to leave the compact if the Federal government became too overbearing.
I think this is often overstated. There were serious issues (outside of the slavery issue) that flared up in the first 100 years of the country, but there was no serious attempt to secede until the Civil War. I agree that, even if only theoretical, the ability to secede was an immense check on the federal power. Lincoln basically killed that, for better and for worse.
However, I think the systematic emasculation of the States during Reconstruction and during the Progressive Era was more damaging than the end of the secession threat. The antebellum culture of being a state citizen did more to prevent federal overreach than the secession threat. Just like today the American gun culture does more to prevent massive gun control measures than any sort of threat from the SCOTUS overturning such laws.
Lincoln basically killed that, for better and for worse.
I don’t think he did, because I don’t think secession was ever thought to be something that could happen without a war. The founders, at least, were well aware of the price of secession, so if somehow the idea got around that secession was a bloodless diplomatic process that was a new development. Viewing things in a global context, bloodless secession seems to have become far more common after the US civil war than before it, not that it is especially common in any event.
https://www.forbes.com/sites/harveysilverglate/2011/07/27/constructing-truth-the-fbis-nonrecording-policy/#273c8c752e8a
There are three overlapping issues at play with Chevron deference:
1) Most of the cases where deference is applied are in situations where the court, had FDR not stolen its testes, would cleanse the entire fucking bureaucracy ZARDOZ style. (Mainly because they’re waaaaaaaaaaay overreaching on the commerce clause, some because independent admin agencies are unconstitutional, the rest because of the non-delegation doctrine)
2) In the remaining situations where ambiguity still exists (ambiguity and interpretation will always exist in law), it is the court’s responsibility to provide the final interpretation of the law. Anything short of that goes afoul of the non-delegation doctrine and messes up the separation of powers.
3) The legislature needs slapped the fuck back into the 19th century. No, you don’t get to write enforcement provisions into the law. No, you don’t get to write “agency X may create any rules and regulations in furtherance of this statute”. No! You write the law, the executive executes the law. You don’t get to create the enforcement agency. You don’t get to tell the executive how to do their job. You don’t get to pass your legislative responsbility off to the agency you just created. You decide what the law is. The executive gets to decide how to enforce the law.If you write a shitty law and the executive misinterprets it (intentionally or otherwise), you write and pass a better law next time.
The legislature needs slapped the fuck back into the 19th century.
Oh, and while I’m ranting on the legislature, the legislature doesn’t get to send states funding conditioned on something that the legislature is constitutionally barred from legislating in order to get around the 10th amendment.
“The condition imposed on the states must not, in itself, be unconstitutional.”
Sigh… I’d think mandating a national Federal Minimum Drinking Age would be out of the purview of Congress…. But you know me, just a backwoods looser.
The breadth of this power was made clear in United States v. Butler, 297 U.S. 1, 66 (1936), where the Court, resolving a longstanding debate over the scope of the Spending Clause, determined that “the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.” Thus, objectives not thought to be within Article I’s “enumerated legislative fields,” id., at 65, may nevertheless be attained through the use of the spending power and the conditional grant of federal funds.
etitioner, relying on its view that the Twenty-first Amendment prohibits direct regulation of drinking ages by Congress, asserts that “Congress may not use the spending power to regulate that which it is prohibited from regulating directly under the Twenty-first Amendment.” Brief for Petitioner 52-53. But our cases show that this “independent constitutional bar” limitation on the spending power is not of the kind petitioner suggests. United States v. Butler, supra, at 66, for example, established that the constitutional limitations on Congress when exercising its spending power are less exacting than those on its authority to regulate directly. [483 U.S. 203, 210]
We have also held that a perceived Tenth Amendment limitation on congressional regulation of state affairs did not concomitantly limit the range of conditions legitimately placed on federal grants.
It’s the FYTW clause. Literally “we decided that when Congress is giving money to the states, the Constitution doesn’t apply”
By the way, “textualist” Scalia signed onto this abomination.
Of course he did, it undergirds the War on Drugs and every other hobby horse he had.
And, as usual, the Dissenters were off the mark:
Justices O’Connor and Brennan both filed dissents. O’Connor agreed that Congress may attach conditions on the receipt of federal funds and that the Twenty-First Amendment gives states authority over laws relating to the consumption of alcohol. However, she wrote that the attachment of condition on the states must be “reasonably related to the expenditure of funds.” She disagreed with the Court’s finding that withholding federal highway funds was reasonably related to deterring drunken driving and drinking by minors and young adults. She argued that the condition was both overinclusive and underinclusive: it prevented teenagers from drinking when they are not going to drive on federal and federally funded highways, and it did not attempt to remedy the overall problem of drunken driving on federal and federally funded highways. She held the relation between the condition and spending too attenuated: “establishment of a minimum drinking age of 21 is not sufficiently related to interstate highway construction to justify so conditioning funds appropriated for that purpose.”
3) The legislature needs slapped the fuck back into the 19th century.
Yep. I wish the courts had done a better job upholding this.
Administrative agencies illegally combine all three branches of government. They legislate via regulation, they adjudicate via administrative law judges, and they enforce.
Nowhere in the list of Congress’s enumerated powers is the power to delegate. One has to rely on the necessary and proper clause to allow delegation of legislative power to an executive agency. How it can be said that it is necessary and proper for any given statute to be completed by a third party is a mystery for the reader.
But it’s so efficient/ Missing the point
Look, it’s necessary in order to pass the law without political consequences so that makes it proper. Isn’t that what that means?
The legislature needs slapped the fuck back into the 19th century. No, you don’t get to write enforcement provisions into the law. No, you don’t get to write “agency X may create any rules and regulations in furtherance of this statute”. No! You write the law, the executive executes the law.
This presupposes some sort of competence and/or depth of knowledge on the part of a bunch of clowns whose only demonstrable “skill” is winning popularity contests. If you (as I do) think Congress should refrain from meddling in things which are, in their feeble little minds, indistinguishable from sorcery, then we’re well on our way to a Federal Register about thirty pages long, including the title page and table of contents.
Which is as it should be.
We should get the lawyers on here together and do a series on the worst supreme court cases in US history.
That would be interesting. Good idea.
IANAL, but can I call dibs on Buck v Bell?
It’s yours!
That is a good one. Do note the lone dissenter and the criticism leveled against his dissent at the time. Oliver Wendell Holmes is the most overrated justice in American history.
I recall a Liberty article from twelve years back that discussed the Buck v. Bell ruling. The article contended that the use of the Buck v. Bell ruling by Nazis during the Nuremberg trials (they argued that their eugenics program against the mentally handicapped was in wide practice throughout the Western World and therefore not a crime against humanity) made the ruling in Griswald inevitable in order to break from Buck.
“We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes…. Three generations of imbeciles are enough.”
– Oliver Wendell Holmes, proto-Nazi
The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes
*Ron Bailey gets hard*
Have you ready Hitler’s American Model: The United States and the Making of Nazi Race Law? The connection between the American progressive intellectuals and Nazi intellectuals isn’t just parallelism. There is direct communications about ideology between the two camps.
Forgot that Taft was Chief Justice.
It’s sad that the case linked at the bottom of the article might be decided on the basis non delegation, rather than the blatant violation of ex post facto punishment because sex offenders are evil so whatever.
Also, cycles (and the resulting kilocycles and megacycles) are more harmonious than Hertz. Suck it OJ.
Day 3: All quiet on the western front…so far.
AGREED
Now that this is settled, can we move on to more important topics like deep dish and abortions?
“Chevron deference is merely a diseased branch on a rotten tree, the trunk of which is legislative abdication of responsibility.”
Agreed. But, Chevron deference is also a byproduct of big government. If the federal government returned to its responsibilities pre-WWII there would be no need to ever discuss deference to a federal agency.
GOTCHA!
Every time the Federal Reserve raises interest rates, it costs President Donald Trump money.
Maybe that’s why Trump has been lacerating the Fed for raising short-term rates, which now stand at a range of 2.25% to 2.5%. That’s 1.75 points higher than when Trump took office at the start of 2017.
Economists have mixed views on whether the Fed should keep raising rates, or slow down and maybe even stop hiking rates for now. But nobody is more certain than Trump that the Fed has got it wrong. And few people pay the price Trump does when rates go up.
Trump’s company, the Trump Organization, holds five commercial loans totaling a minimum of $180 million with variable-rate interest payments, according to the annual financial disclosure Trump is required to file with the federal government. Filers are only required to divulge their assets and liabilities in broad ranges. Trump lists three variable-rate loans of more than $50 million, one between $25 million and $50 million, and another between $5 million and $25 million. Four of the five are from German lender Deutsche Bank.
Bloomberg estimates the total value of Trump’s variable-rate loans at around $340 million, based on additional data from public records related to the properties those loans finance. If so, every quarter point rate hike by the Fed could raise Trump’s borrowing costs by more than $1 million per year. So the seven rate hikes since Trump took office may have raised his borrowing costs by at least $7 million, on a rolling basis, with the bill getting bigger as rates rise further.
Trumputin only ran for President to keep interest rates low, for his personal benefit.
Impeach
him.
Grandma Tres, were she alive today, would agree with that. Then again, she also swore that George Bush (and his oil buddies) held a meeting every morning to decide how much Americans were going to pay for gasoline that day.
“Every time the Federal Reserve raises interest rates, it costs President Donald Trump money.”
You know who else it costs money? The US Government who rolls over it’s debt. You don’t have to come up with a conspiracy to realize why DT might not want interest rates to rise. (I’m not defending his position, just attacking the idea that it’s some evil plan on his own to save money).
Trump’s net worth is around $3 billion, according to Bloomberg, so higher business costs of around a couple million dollars per year might seem inconsequential. Still, Trump’s financial stake in federal policymaking decisions he is in a position to influence is obviously unusual and problematic.
Trump already faces lawsuits from Maryland and the District of Columbia arguing he is accepting improper payments from foreigners — forbidden by the Constitution — through bookings at his hotels by officials of other governments. He was pursuing a business deal in Russia while campaigning for president in 2016, without acknowledging so, while also calling for a weakening of U.S. sanctions on Russia. He has boasted in the past about earning “hundreds of millions” of dollars from wealthy Saudis, which might explain his unusually soft stance toward the Saudi leader, Mohammed bin Salman, who’s apparently complicit in the murder of journalist Jamal Khashoggi. To this list of apparent and perhaps actual conflicts of interest, we can now add the personal gain that would accrue to Trump from lower interest rates and a reversal of the Fed’s current policy.
There’s no rule or law saying a businessperson with sprawling financial interests can’t be president. But there are definitive laws against using one’s government position for personal gain. And there’s the obvious need for disclosure and transparency when a president stands to gain from a policy he may determine, as a minimal stab at credibility. Not Trump’s style, alas.
Perp walk!
“But there are definitive laws against using one’s government position for personal gain”
Something, Something, Like with a cloth?
*blows fire from ears*
The Clinton’s and Obama’s never influenced government for profit. Their fortunes were completely the result of non-government influenced work and effort.
Starting with data/evidence/text of law and working towards a conclusion is fundamentally different than starting with a preferred conclusion and working backward to justify it.