I'm tempted not to even comment because it seems to me that whatever the SC or anyone else says, this Admin is just going to do what it wants; legal or not. And the Legacy Media will just ignore it. My conservative friends think it's a big win. But, again, only if enforced.
Roger, I think what you miss in all this is the real world state of affairs. As an energy investor and a (former) mining investor I can tell you that the radical environmentalists (ah, but do I repeat myself?) have absolutely perfected abusing the regulatory/permitting rules to totally prevent permitting of new mines. They draw out the process for years, and then when it's up for final approval they show up with some never-heard-of "indigenous group" that "wasn't properly consulted" and the whole thing starts over, and usually results in the project being abandoned. (And who funds this? Crickets).
So, the regulatory process is utterly corrupted.
Linked below is a good interview with a Repub Rep from UT. He talks about trying to streamline approval processes, esp for nuclear. He says Congress has passed reforms that would stymie the abuses and that the Biden Admin is expected to sign it. (I don't know if it has). But, I'm also hearing that passing this, and signing this and actually enforcing it are two entirely different things.
So, that just leaves me totally jaded at the whole issue, and American politics in its entirety. Laws? We don't need no steenkin' Laws? Laws are just words unless enforced. And if not enforced you need a Press that will call it out. But, Laws are being ignored or abused and since the actors are part of the legacy media's Tribe it goes unreported. And people who know get understandably very angry. And that dynamic, across a multitude of issues, explains Trump. He's a giant middle finger to a Leviathan that just ignores, at best, much of America, and at worst runs over or outright prosecutes them.
These are becoming dangerous times. No time to be naive......JMVHO.
Sunstein's 2018 piece on this topic (see your link) was remarkable for the back and forth from Justices Breyer & Scalia (against & for Chevron, respectively). Breyer felt that the more important the question, the more the courts should not defer to an agency's position. That seems correct to me.
I agree with some of the commenters below that some gov bureaucracies have been infiltrated by people with an agenda, and this is a form of regulatory capture - from the inside. Part of the "long march" through the institutions of a society to effect changes that could never passed democratically.
In Sunstein's piece he quoted Roscoe Pounds who cautioned [during FDR's presidency] about the dangers of any system in which agencies were allowed to interpret the law meant to confine them. Very prescient.
Thank you Roger, great analysis. I practiced tax law before the IRS for 20 years and fought a lot of battles under the “regulatory” regime created by that agency. Some regulations were legislative, which by statute, gave the IRS authority to write them. Some regulations were interpretive, for which there was no statutory grant. So I was left dealing with this regime on many issues. Rarely did I violate legislative regulations in planning a transaction. Occasionally, when there was case law to support the position, I did violate interpretive regulations, but only if we could get to a More Likely than Not (51%) level of comfort. Overall, I like the idea of making Congress provide more clarity for federal agencies and see the need to remove power from the administrative state, that sometimes acts like a wet rag on the economy.
Unfortunately, the potential positive value of having a mechanism that would allow unbiased administrative experts to clarify ambiguous Congressional language has been lost as agencies now often use it as a back door to advance the policy agenda of their administration. The outrageous rule-making proposals by the EPA that would eliminate coal plants and gas cars are certainly examples of this.
As a retired lawyer I have argued both sides of the defence issue. It is not easy for non-lawyers to understand what is really going on.
In practice, if a judge agrees with the decision below she will usually say she is exercising deference; if she disagrees she will also say she is exercising deference, but, because the decision is unreasonable she must overrule it. In practice, how helpful is the deference mantra? Does it explain or obscure the judge’s real reasons for decision? Some of each.
Looked at another way, deference is an attitude, not a law. Laws should be certain, leading in most cases to predictable outcomes. A mandate d attitude doesn’t provide that. Then discussing degrees of deference makes outcomes even more opaque.
I had to read your post twice to see if I fully understood. Perhaps it's playing devil's advocate, or acknowledging the can of worms that has just been opened compared to the perceived intent of the Chevron rule. That said, to the latter I say, "good". Expertise definitely has a place in any agency that executes regulation. On the other hand, the Chevron rule has been terribly abused with agencies overreaching in their authority. It appears to be a large part of why we are where we are with the unelected bureaucracies and it should end.
It’s because of the deep state, bureaucrats who keep their jobs knowing they are untouchable for their definitions. Today based on the ideology of biden and mainly the radical left. Is anyone paying attention to what they have mandated? Fishermen must pay $700 a day to have a government inspector on their boat. It would be like Roger you need a government appointed monitor in your lab and you will pay their salaries.
Net plus to have Chevron off the books. Judges will always interpret, the legislature will always pass laws, and the executive agencies will enforce them—incl thru rulemaking, but subject to the APA. No reason agencies should have so much interpretive power, viz., Congress can and should speak more clearly. This decision should rebalance those branches more evenly, especially with the Major Questions Doctrine on the books too. This is my hope anyway, and I speak here as a former senior regulator!
Yes, Congress could direct any federal agency to issue legislative regulations (with the force of law) or interpretive regulations (which do not). I practiced tax law for 30 years and came across this dynamic all the time in dealing with the IRS. We never went against legislative regulations but always pushed interpretive regulations to the limit.
I respectfully dissent from your take on the decision, Roger. EPA's egregious attempted power grab [sorry for the bad pun] to regulate electricity generation is but one example of the need for a truly independent review of questionable decisions. The waters of America is another. The current Administration's push to ban natural gas appliances is another. Are the courts the best arbiter? Of course not. But Chevron effectively eliminated a check on the regulatory state; its overturning offers a chance to restore some balance to the Executive branch's regulatory decisions.
As a lawyer myself, Chevron deference is a matter of discussion down here in New Zealand. But here the courts are more ready to interpret legislation. In fact they have gone to great lengths to ensure they are the sole arbiters of statutory interpretation with very limited circumstances where matters of legal interpretation are left to non-lawyers or agencies - usually when there is a residual appeal to the High Court.
But they will nevertheless defer to an agency where matters of broad discretion are ascribed to a decision maker. For example, a City Council is entitled to set the annual rates. Courts are highly unlikely to interfere because the elected members are supposedly better placed to weigh the different wants and needs of its residents.
For climate science, our Ministry for the Environment is using the SSP5-8.5 as its basis for climate policy. This leads to unnecessary adaptation costs for developers, exaggerated estimates of rainfall and sea level rise with large sections of our coastline being unavailable for housing. Some areas have been determined 'unlivable' after a tropical cyclone damaged it in 2023 and the Gov't has even funded a buy-out programme, but the determination of future 'livability' is based on SSP5-8.5, not a realistic scenario. Folks are most upset!
Under New Zealand law, decision makers are meant to take account of the 'likely' effects of future climate. We know through Roger's work and now that of the IPCC climate modelling community (Meinhausen et al 2024), that SSP5-8.5 is 'unlikely' and described by Hausfather et al 2021 as 'more and more implausible' with every passing year.
So I expect that in this case the agency has got it wrong and hopefully the courts will intervene to ensure a more realistic scenario is adopted for planning.
The problem for the Ministry is that without the high end models, a significant part of the climate problem diminishes, meaning the Ministry needs less experts, less funding and accordingly less relevance. The same will apply with climate consultants who are funded by all Councils to advise based on scary, if implausible, models that feed into town and country planning.
I’m not sure why decisions should be made only by experts within the regulatory agencies. Experts exist outside the regulatory agencies. To me, it seems reasonable to let the courts weigh the arguments and decide. That’s their function in general, isn’t it? Perhaps we would get better, less biased decisions if specialized courts were created to handle highly technical issues (much like courts that specialize in patent law). It would also help if judge(s) hearing the case had to be agreed upon by both parties.
Roger, usually I regard you as one of the better communicators of difficult ideas, but this topic is so arcane and assumes enthusiastic adherence to the topic. This just read to me like five minutes of straight legalese as legal concepts were flying past my head. Same with Ilya Shapiro’s article on the same topic as of yesterday, which I similarly failed to comprehend. It’s clearly my own ignorance, but is there a more clear explanation out there which eschews all the jargon? You know, for us morons?
"Do scientists generally understand their science better than do judges: Y/N?"
For 40 years SCOTUS said no, and this reduced partisan-based policy decisions. Now, they say they know best, and only Congress can tell them otherwise.
This mischaracterizes the situation. Judges can listen to experts. They lack the agency's institutional incentives to relentlessly expand their funding and power.
You're right that agencies have institutional incentives to expand their scope, power, and budget. They are also a lot more accountable than judges, up to and including removing them for incompetence, negligence, recklessness, or misconduct.
"Judges can listen to experts" - there is no requirement that they do so, nor any governance for how those experts are selected or evaluated.
We don't have to speculate though. We know that 40 years of Chevron brought fewer partisan challenges when it was used, and more when it wasn't. That tells us that Chevron was a force for objectivity and evidence-based policy... so removing it moves backwards for both those goals.
I don't actually mind the judicial branch chastising the legislative branch for not doing their job well. Is this the best answer possible? Most other Western law strikes the balance at a different point, usually by restricting judicial review to errors of law and not allowing them to pitch themselves as expert reviewers of science.
This supposed much higher level of accountability compared to judges is not obvious to me. How often do we hear of top agency people being removed? Or punished in any way for screwing up badly?
Assuming that it's true that Chevron resulted in fewer partisan challenges over the past 40 years, does this recommend it for the next 40 years? Perhaps. But the regulatory states just keeps expanding and if partisan pressure goes primarily against that expansion, then Chevron is a problem.
Ultimately, the best solution is to massively reduce regulation and its agencies. But that doesn't look very likely.
Here you see my experience as an Australian living in the UK... I look at failures of government and think that the answer is not less regulation but more and better regulation; not "get out of the way of private enterprise" but "private enterprise will only do the right thing when it is given no other choice".
When I see something done wrong my instinct is to do it better, not to stop doing it. That has some assumptions baked in which I agree aren't always the most helpful, so in the spirit of THB where we are all here because of our shared love of following the evidence for the best results even if those result don't line up with our ideological preferences... yes I'm willing to explicitly add "Should we stop doing this [regulation] in this case?" as one of the questions there is always a case to answer.
Re. how often do we hear of top agency people being removed? A lot more often that we hear of judges being removed. Or being punished for openly violating their own internally-enforced codes of conduct.
You clearly have not been involved in areas where federal agencies make up their own rules. I was a civilian pilot for 50 years and dealt with the FAA. Over the years the FAA made more and more restrictive regulations, to the point where you were ALWAYS in violation of something, and there was 0% chance of prevailing if the FAA wanted to pull your license. They were literally judge, jury and executioner. Most other federal agencies like the EPA were the same way. In fact, the case that just caused Chevron to be overturned was SEVENTEEN YEARS in the making, and put many hard-working fishermen out of business in the meantime, for no good reason other than 'because we can'.
I agree with Jim that my experience is that judges are constantly involved with USFWS, BLM and FS decisions- effectively deciding issues to their own preferences without deferring to, or even in some cases, respecting, agency views. So this "end of the world due to losing Chevron" rhetoric is not at all compelling. I think if partisans were honest, they would say "agencies that agree with us.. for example EPA.. should always get deference; BLM FS and USFWS... not so much. I should also point out that the same folks who wanted the NEPA Phase II proposed regs (a full-employment program for environmental litigators) think this SC positions is bad because.. wait.. it will lead to "increased litigation which wastes time." We're the victims of attempted hornswogglery on this.
I'm tempted not to even comment because it seems to me that whatever the SC or anyone else says, this Admin is just going to do what it wants; legal or not. And the Legacy Media will just ignore it. My conservative friends think it's a big win. But, again, only if enforced.
Roger, I think what you miss in all this is the real world state of affairs. As an energy investor and a (former) mining investor I can tell you that the radical environmentalists (ah, but do I repeat myself?) have absolutely perfected abusing the regulatory/permitting rules to totally prevent permitting of new mines. They draw out the process for years, and then when it's up for final approval they show up with some never-heard-of "indigenous group" that "wasn't properly consulted" and the whole thing starts over, and usually results in the project being abandoned. (And who funds this? Crickets).
So, the regulatory process is utterly corrupted.
Linked below is a good interview with a Repub Rep from UT. He talks about trying to streamline approval processes, esp for nuclear. He says Congress has passed reforms that would stymie the abuses and that the Biden Admin is expected to sign it. (I don't know if it has). But, I'm also hearing that passing this, and signing this and actually enforcing it are two entirely different things.
https://veriten.com/stream/cobt-se-john-curtis/
So, that just leaves me totally jaded at the whole issue, and American politics in its entirety. Laws? We don't need no steenkin' Laws? Laws are just words unless enforced. And if not enforced you need a Press that will call it out. But, Laws are being ignored or abused and since the actors are part of the legacy media's Tribe it goes unreported. And people who know get understandably very angry. And that dynamic, across a multitude of issues, explains Trump. He's a giant middle finger to a Leviathan that just ignores, at best, much of America, and at worst runs over or outright prosecutes them.
These are becoming dangerous times. No time to be naive......JMVHO.
Interesting topic Roger - thx!
Sunstein's 2018 piece on this topic (see your link) was remarkable for the back and forth from Justices Breyer & Scalia (against & for Chevron, respectively). Breyer felt that the more important the question, the more the courts should not defer to an agency's position. That seems correct to me.
I agree with some of the commenters below that some gov bureaucracies have been infiltrated by people with an agenda, and this is a form of regulatory capture - from the inside. Part of the "long march" through the institutions of a society to effect changes that could never passed democratically.
In Sunstein's piece he quoted Roscoe Pounds who cautioned [during FDR's presidency] about the dangers of any system in which agencies were allowed to interpret the law meant to confine them. Very prescient.
Thank you Roger, great analysis. I practiced tax law before the IRS for 20 years and fought a lot of battles under the “regulatory” regime created by that agency. Some regulations were legislative, which by statute, gave the IRS authority to write them. Some regulations were interpretive, for which there was no statutory grant. So I was left dealing with this regime on many issues. Rarely did I violate legislative regulations in planning a transaction. Occasionally, when there was case law to support the position, I did violate interpretive regulations, but only if we could get to a More Likely than Not (51%) level of comfort. Overall, I like the idea of making Congress provide more clarity for federal agencies and see the need to remove power from the administrative state, that sometimes acts like a wet rag on the economy.
Unfortunately, the potential positive value of having a mechanism that would allow unbiased administrative experts to clarify ambiguous Congressional language has been lost as agencies now often use it as a back door to advance the policy agenda of their administration. The outrageous rule-making proposals by the EPA that would eliminate coal plants and gas cars are certainly examples of this.
As a retired lawyer I have argued both sides of the defence issue. It is not easy for non-lawyers to understand what is really going on.
In practice, if a judge agrees with the decision below she will usually say she is exercising deference; if she disagrees she will also say she is exercising deference, but, because the decision is unreasonable she must overrule it. In practice, how helpful is the deference mantra? Does it explain or obscure the judge’s real reasons for decision? Some of each.
Looked at another way, deference is an attitude, not a law. Laws should be certain, leading in most cases to predictable outcomes. A mandate d attitude doesn’t provide that. Then discussing degrees of deference makes outcomes even more opaque.
I had to read your post twice to see if I fully understood. Perhaps it's playing devil's advocate, or acknowledging the can of worms that has just been opened compared to the perceived intent of the Chevron rule. That said, to the latter I say, "good". Expertise definitely has a place in any agency that executes regulation. On the other hand, the Chevron rule has been terribly abused with agencies overreaching in their authority. It appears to be a large part of why we are where we are with the unelected bureaucracies and it should end.
https://x.com/RealSpikeCohen/status/1807513128479150478
This is a good, simple example.
Thanks.
I just read this:
https://x.com/Heminator/status/1807163371197743426
It’s because of the deep state, bureaucrats who keep their jobs knowing they are untouchable for their definitions. Today based on the ideology of biden and mainly the radical left. Is anyone paying attention to what they have mandated? Fishermen must pay $700 a day to have a government inspector on their boat. It would be like Roger you need a government appointed monitor in your lab and you will pay their salaries.
Dear Mr. Brandt, I understand that the Supreme Court ruled in favor of the fishermen. Is that not correct?
Yes that is correct.
Net plus to have Chevron off the books. Judges will always interpret, the legislature will always pass laws, and the executive agencies will enforce them—incl thru rulemaking, but subject to the APA. No reason agencies should have so much interpretive power, viz., Congress can and should speak more clearly. This decision should rebalance those branches more evenly, especially with the Major Questions Doctrine on the books too. This is my hope anyway, and I speak here as a former senior regulator!
Yes, Congress could direct any federal agency to issue legislative regulations (with the force of law) or interpretive regulations (which do not). I practiced tax law for 30 years and came across this dynamic all the time in dealing with the IRS. We never went against legislative regulations but always pushed interpretive regulations to the limit.
Yes, thank you. I just had no real idea of what was being said.
I respectfully dissent from your take on the decision, Roger. EPA's egregious attempted power grab [sorry for the bad pun] to regulate electricity generation is but one example of the need for a truly independent review of questionable decisions. The waters of America is another. The current Administration's push to ban natural gas appliances is another. Are the courts the best arbiter? Of course not. But Chevron effectively eliminated a check on the regulatory state; its overturning offers a chance to restore some balance to the Executive branch's regulatory decisions.
As a lawyer myself, Chevron deference is a matter of discussion down here in New Zealand. But here the courts are more ready to interpret legislation. In fact they have gone to great lengths to ensure they are the sole arbiters of statutory interpretation with very limited circumstances where matters of legal interpretation are left to non-lawyers or agencies - usually when there is a residual appeal to the High Court.
But they will nevertheless defer to an agency where matters of broad discretion are ascribed to a decision maker. For example, a City Council is entitled to set the annual rates. Courts are highly unlikely to interfere because the elected members are supposedly better placed to weigh the different wants and needs of its residents.
For climate science, our Ministry for the Environment is using the SSP5-8.5 as its basis for climate policy. This leads to unnecessary adaptation costs for developers, exaggerated estimates of rainfall and sea level rise with large sections of our coastline being unavailable for housing. Some areas have been determined 'unlivable' after a tropical cyclone damaged it in 2023 and the Gov't has even funded a buy-out programme, but the determination of future 'livability' is based on SSP5-8.5, not a realistic scenario. Folks are most upset!
Under New Zealand law, decision makers are meant to take account of the 'likely' effects of future climate. We know through Roger's work and now that of the IPCC climate modelling community (Meinhausen et al 2024), that SSP5-8.5 is 'unlikely' and described by Hausfather et al 2021 as 'more and more implausible' with every passing year.
So I expect that in this case the agency has got it wrong and hopefully the courts will intervene to ensure a more realistic scenario is adopted for planning.
The problem for the Ministry is that without the high end models, a significant part of the climate problem diminishes, meaning the Ministry needs less experts, less funding and accordingly less relevance. The same will apply with climate consultants who are funded by all Councils to advise based on scary, if implausible, models that feed into town and country planning.
They won't give it up easily.
I’m not sure why decisions should be made only by experts within the regulatory agencies. Experts exist outside the regulatory agencies. To me, it seems reasonable to let the courts weigh the arguments and decide. That’s their function in general, isn’t it? Perhaps we would get better, less biased decisions if specialized courts were created to handle highly technical issues (much like courts that specialize in patent law). It would also help if judge(s) hearing the case had to be agreed upon by both parties.
Roger, usually I regard you as one of the better communicators of difficult ideas, but this topic is so arcane and assumes enthusiastic adherence to the topic. This just read to me like five minutes of straight legalese as legal concepts were flying past my head. Same with Ilya Shapiro’s article on the same topic as of yesterday, which I similarly failed to comprehend. It’s clearly my own ignorance, but is there a more clear explanation out there which eschews all the jargon? You know, for us morons?
Perhaps something like this?
"Do scientists generally understand their science better than do judges: Y/N?"
For 40 years SCOTUS said no, and this reduced partisan-based policy decisions. Now, they say they know best, and only Congress can tell them otherwise.
This mischaracterizes the situation. Judges can listen to experts. They lack the agency's institutional incentives to relentlessly expand their funding and power.
You're right that agencies have institutional incentives to expand their scope, power, and budget. They are also a lot more accountable than judges, up to and including removing them for incompetence, negligence, recklessness, or misconduct.
"Judges can listen to experts" - there is no requirement that they do so, nor any governance for how those experts are selected or evaluated.
We don't have to speculate though. We know that 40 years of Chevron brought fewer partisan challenges when it was used, and more when it wasn't. That tells us that Chevron was a force for objectivity and evidence-based policy... so removing it moves backwards for both those goals.
I don't actually mind the judicial branch chastising the legislative branch for not doing their job well. Is this the best answer possible? Most other Western law strikes the balance at a different point, usually by restricting judicial review to errors of law and not allowing them to pitch themselves as expert reviewers of science.
This supposed much higher level of accountability compared to judges is not obvious to me. How often do we hear of top agency people being removed? Or punished in any way for screwing up badly?
Assuming that it's true that Chevron resulted in fewer partisan challenges over the past 40 years, does this recommend it for the next 40 years? Perhaps. But the regulatory states just keeps expanding and if partisan pressure goes primarily against that expansion, then Chevron is a problem.
Ultimately, the best solution is to massively reduce regulation and its agencies. But that doesn't look very likely.
Here you see my experience as an Australian living in the UK... I look at failures of government and think that the answer is not less regulation but more and better regulation; not "get out of the way of private enterprise" but "private enterprise will only do the right thing when it is given no other choice".
When I see something done wrong my instinct is to do it better, not to stop doing it. That has some assumptions baked in which I agree aren't always the most helpful, so in the spirit of THB where we are all here because of our shared love of following the evidence for the best results even if those result don't line up with our ideological preferences... yes I'm willing to explicitly add "Should we stop doing this [regulation] in this case?" as one of the questions there is always a case to answer.
Re. how often do we hear of top agency people being removed? A lot more often that we hear of judges being removed. Or being punished for openly violating their own internally-enforced codes of conduct.
You clearly have not been involved in areas where federal agencies make up their own rules. I was a civilian pilot for 50 years and dealt with the FAA. Over the years the FAA made more and more restrictive regulations, to the point where you were ALWAYS in violation of something, and there was 0% chance of prevailing if the FAA wanted to pull your license. They were literally judge, jury and executioner. Most other federal agencies like the EPA were the same way. In fact, the case that just caused Chevron to be overturned was SEVENTEEN YEARS in the making, and put many hard-working fishermen out of business in the meantime, for no good reason other than 'because we can'.
I agree with Jim that my experience is that judges are constantly involved with USFWS, BLM and FS decisions- effectively deciding issues to their own preferences without deferring to, or even in some cases, respecting, agency views. So this "end of the world due to losing Chevron" rhetoric is not at all compelling. I think if partisans were honest, they would say "agencies that agree with us.. for example EPA.. should always get deference; BLM FS and USFWS... not so much. I should also point out that the same folks who wanted the NEPA Phase II proposed regs (a full-employment program for environmental litigators) think this SC positions is bad because.. wait.. it will lead to "increased litigation which wastes time." We're the victims of attempted hornswogglery on this.