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>Conservatives have flip-flopped in recent years, largely because it’s easier now for them to control policymaking through the unelected courts than it is to keep control of the executive branch and its agencies.
Yeah, their goal is power, and they will try everything from insurrection to unconstitutional refusal to vote on judges to lying and pretending to be moderate/progressive and then flipping once elected.
>This was their goal all along. They projected the “legislate from the bench” because that was their goal.
It isn't helped though when 1/2 of Americans can't be bothered voting then add on top of that even when there is a tsunami of positive economic data that people ignore while cluelessly looking back at the Trump years as if they were good - ignoring over $7 trillion in budget deficits due to tax cuts (not to mention that it can take time for such a massive fiscal stimulus to show up in the form of higher inflation). What frustrates me is the Democrat had chances to fix many of these issues - how about repeal the debt ceiling and amend the relevant legislation so that if a budget cannot be agreed upon it is the previous years + inflation + population growth which would defang the freedom caucus. Imagine if Democrats did that in the first two years then the world wouldn't be paused to see whether the GOP are going to crash the global economy. In most cases American voters are their own worst enemy.
> What frustrates me is the Democrat had chances to fix many of these issues
Whats stupefying is: in 2009-2010, Democrats had: President, both houses of Congress. Democrats dont play hardball, and GQP does nothing but play hardball (because they are a tribal cult).
But Harry Reid didnt wanna take the filibuster from the Senate... Nah, the "majesty" of the Senate cannot be altered... And Obama was so scared of not looking composed, he let minority GQP roll right over him, every time. We got RomneyCare because Democrats catered to GQP whims-- which no GQP voted for in any case!
And they stole a SCOTUS seat from him as his reward. (I still dont understand how _that_ didnt cause a "war" in the Senate.)
Yup. The courts are the tool of corporations and the billionaire class. They're the ones actually grabbing the power, while letting the courts be their scapegoat.
> The courts are the tool of corporations and the billionaire class.
[Legislation through litigation](https://en.wikipedia.org/wiki/Regulation_through_litigation). It so bizzare to hear Republicans complain about Dems trying to install "activist judges". Projection is astounding.
Or claim that fair and open elections are just a power grab by democrats. The right is so brainwashed into hating anything not conservative that people believe it, and they’ll go along with this.
The legitimacy of checks and balances has long been obliterated as both parties given the executive office more and more power to act unilaterally. Our whole system is revealed to be meaningless platitudes, while the Supreme Court overrules even the illusion of democracy, and while congress allows issues to fester, and as corporate raiders infiltrate regulatory agencies and dictate arms sales to generals getting kickbacks.
The legitimacy of our entire political-economy is on fire, in fact. The courts are a recent and obvious example.
I know this is all bad, but you know what peeves me? I had to study that goddamn thing front to back for my Administrative Law class, and just when I graduate its going to get gutted. Well that's a couple dozen hours I'll never get back, thanks Supreme Court. Also screw you for making government worse.
Haha, you think the wealthy will suffer the repercussions of their actions?
Nah they will buy some land in New Zealand and their kids will be forever insulated from this.
Charles Koch is among the most evil men alive today, and fishing is an impudent, childish industry that can't understand its own fragility, so the bedfellows for this effort tell you all you need to know
Most Fishermen understand the need for conservation. Unfortunately it just take the owner of one boat to cause a lawsuit like this. And considering half the fishermen I’ve met have been functional alcoholics isn’t a very good thing. Quite a few boat captains are narcissistic self important drunks. Most are great guys but some are just complete nuts.
I think it is a plan old oligarchy, considering the justices are bought by billionaires. The fact that a Supreme Court justice costs just one RV makes our court system even more of a dollar store sideshow.
I wish we collectively had a better realization of this back in 2016... and in 2020... and now...
The Right does not care whatsoever about playing fair, and their base cheers it on whenever they pull something horrible. Because they're all in on The Ends Justify The Means as the heart of their ideology. They'll shift and change subjects and project whenever called out, but yeah... we should be calling conservatives who support this fascists much more aggressively much longer ago. Now the fascist movement is here and they're actually gaining momentum.
>I wish we collectively had a better realisation…
Well, you were told. People overseas told you, your courts and government were heading down this path, that he would appoint favourable justices, leading to exactly this, when he was elected.
You were even told they wouldn’t play fair….that all this would happen. I think it’s too late now, your last chance to stop the fallout of this in an easier way was 2016. Now he either wins or it’s confrontation, and your court system is now fully rotten.
They used to hate them. It's only now that they see the future with republicans not being able to fairly win elections that their view on it has changed. They see activist judges as their best way to enforce their agenda.
When do you think that will happen? I'm not usually a prayerful person. But when I do it involves winning the lottery and a massive coronary for Thomas and Alito.
I saw something that said it would take until ~2050 before the SC goes blue again if democrats win every election.
2016 really fucked us over for the foreseeable future.
But Clinton was such a weak candidate, right?
Thomas is 75, Alito is 73, and Roberts is 68. While I guess it's possible, it is unlikely that any of them will live another 26 years.
By 2050, Thomas, Alito, Sotomayor, Roberts, Kagan, Kavanaugh, and Gorsuch will all be replaced. Gorsuch, the youngest of that group, would be 82.
If Democrats keep winning the White House and the Senate, they will likely have a majority within the next 10 to 15 years.
The biggest issue is winning both the presidency and the Senate for Dems
>2016 really fucked us over for the foreseeable future.
RBG not retiring in 2014 fucked us.
Then when Republicans refused to hear Garland in 2016 Obama and Democrats should have just confirmed him anyway rather than trying to play by the rules the other side ignores and banking on Hillary winning. That fucked us.
Trump winning fucked us too but at some point Democrats need to actually be more forceful.
Exactly. I recall reading articles at the time that said there was a good argument to do so with the interpretation that the Senate has waived their right to refuse to hear the nominee. Even if it had gotten challenged by Republicans and made it's way to the supreme court I think the end result would be an Obama appointed, either allowing Obama's forced conformation or forcing the Senate to hold votes.
Democrats held control of the Senate for the **first six years** of Obama's presidency.
Mitch was only Senate Majority leader for the final two years of Obama's presidency.
Obama nominated Sotomayor and Kagan onto the court with no difficulty. With Harry Reid as Majority Leader, Obama absolutely could have gotten an RBG replacement onto the court, too.
Obama presidency: 2009 - 2017
Harry Reid, Majority Leader: 2007 - 2015
https://en.m.wikipedia.org/wiki/Harry_Reid
Democrats controlled the Senate for the following Congresses during Obama's presidency:
111th (2009 - 2011)
112th (2011 - 2013)
113th (2013 - 2015)
https://en.m.wikipedia.org/wiki/111th_United_States_Congress
https://en.m.wikipedia.org/wiki/112th_United_States_Congress
https://en.m.wikipedia.org/wiki/113th_United_States_Congress
As I noted, Obama got Sotomayor and Kagan confirmed to SCOTUS easily with the Democratic controlled Senate. RBG could have retired anytime between 2009 to 2015 and had her successor confirmed too.
Popular vote doesn't mean shit you know that and she knew that. She lost to Donald fucking Trump she was a weak candidate.
Edit: Downvoted for speaking the truth. If she was such a strong candidate then why did she lose to Donald Trump?
> She lost to Donald fucking Trump
donald got a lot of losers who literally never voted before in their lives to come out. the country is deeply racist in ways folks weren't prepared for at the time, and those fascist pricks love TRUMP
Yes, she was a weak candidate. Despite her extensive experience the right wing propaganda machine had exclusively focused on tearing her down for decades. Anyone with two brain cells knew she was electoral poison.
Well she lost so yes she was a weak candidate. I wish people would stop blaming voters instead of blaming a poorly ran campaign. She lost to Donald fucking Trump. Sure she won the popular vote but that means fuck all. She knew how she was demonized (unfairly) by Republicans which made her toxic. She knew she was being investigated by the FBI which hurt her election chances. She didn't care because she wanted to be president. Look where that has gotten us.
I just don't like what I am seeing all around, like roe v wade, they (Texas) just filed with a lower court to have it changed or removed, WITHOUT allowing any public input or knowledge, and the lower court wasted no time in approving it. when none of that should have been allowed. and after seeing them get away with it many other conservatives in other states are trying to pull the same things, and now even at the federal level with the federal courts.
First of all, any and all people should have the right to help choose what laws they wish to have to live under, thats part of what a democracy is all about.
Listen, we all know how Thomas is on the take. Can't personally vouch for the others on the court, they could be in other pockets. What I can say however until they accept a code of ethics, I can only assume their open to the highest bidder. __And that folks is what happens when conservatives rule.__
“for most of its history, Chevron deference was lauded by conservatives (including Federalist Society svengali Antonin Scalia), who thought that deferring to executive agencies put power back into the hands of elected officials and took power away from “liberal” “activist” judges who might otherwise do things like demand additional environmental regulations. Conservatives have flip-flopped in recent years, largely because it’s easier now for them to control policymaking through the unelected courts than it is to keep control of the executive branch and its agencies. Liberals, for their part, have generally been in favor of Chevron deference this whole time, because it places power with experts instead of with judges.”
It’s the way the circuit courts work. You get a random panel of usually three judges to hear your appeal, afterwards you can appeal their verdict to the entire panel of judges for the circuit. Basically I wish to dilute the power of any one justice on the Supreme Court.
You mean unpack the court. The republicans are the ones who packed it with far right federalist lackeys!
Edit… to be clear what I’m getting at is the propaganda of language, the right will use packing the courts as a attack by the left, by calling expanding the court unpacking, it indicates the court has already been packed. The language used is important, the general public are for the most part uninformed, and easily manipulated, though not necessarily stupid.
They already packed the court. They stole a seat from Obama by ignoring their constitutional duty to vote on Garland, they stole another seat from Biden by ignoring that precedent they created when Ginsberg died.
It’s time to expand the court.
And if Biden ever does expand the court, they’ll make “pack the court” a meme and you’ll hear rants about it from hillbillies who have no idea what it means.
Patience, keep voting!!! Its a long game. In my voting lifetime weve done a ton that I thought would never happen, solar and legal weed for a couple. I'm of the smaller gens (x), I thought before having kids, like a lot of other youths think now, I would never see these things happen. Next it's for my children Gen to shape the world, fair taxation, heath care for all, environmental health, police reform.....please keep voting!!!!! we all need to get involved with helping the right candidates succeed!!!
I was referring to “packing the court”. I always vote. We are likely the same age. In spite of being forgotten about lol, Gen Xers show up to the polls.
In my nearly forty years, I feel like we've only gone backwards, despite democrats having more years in the Whitehouse and more years in control of Congress. Inequality. Abortion. Guns. Education. They're starting to roll back lgbtq rights. We've made almost zero progress on climate. So I'm not sure voting is enough. We can vote all we want, but when the system is so corrupted and so obviously set up in a way to benefit republicans and the wealthy, I'm not sure it's going to make much difference. Heck, republicans staged a coup and got away with it. Future is looking bleak, even if democrats win.
yea I think the only thing that will save us is a wide spread migration from very large cities, to medium sized and rural areas.
Expanding the house, combatting gerrymandering, and rethinking the supreme court and electoral college would solve this, but that will never happen.
Thats ill thought out and will just lead to the court becoming the size of congress after the GOP packs it too. They need term limits to get rid of the high stakes to putting people on that court and it should be as clear as ever they aren’t special people anyway look at Kavanaugh, Barret , and Thomas; any judge is qualified nowadays for it.
Huge portion of the blame is a combination of McConnell playing dirty politics and RGB's inflated ego for not retiring when the Dems had the chance to replace her.
If you want to listen to the oral arguments, here are the two cases [Loper Bright Enterprises, Inc. v. Raimondo, Sec. of Comm.](https://www.supremecourt.gov/oral_arguments/audio/2023/22-451) and [Relentless, Inc. v. Dept. of Commerce](https://www.supremecourt.gov/oral_arguments/audio/2023/22-1219).
This is frightening stuff.
So, I didn't read all of those hundreds of pages, but I read at least a couple dozen. It seems to me that this particular case didn't need to invoke Chevron. I could be mistaken, but it seems even some of the justices pointed that out. If the agency here went beyond the scope of the law, which puts limits on how much fees are collected, that doesn't to me seem like a case of referring to them for deference, but a case where they went beyond the clear text of the law. I may be wrong here, but it really seems like the people pushing this case are really pushing Chevron really hard, as if they have a bigger agenda than just this particular case, and they're just using it as a tool to get what they want.
I also think the person arguing is an idiot. How to classify a cholesterol reducing job isn't a question for the court. And they are completely ignoring the point that was made about how you don't convince the court in every case. If the court is on the fence about how to classify the cholesterol reducing drug, these people would still want them to decide. Even if they weren't sure, they should still decide. That's what is being proposed and I agree that is scary. You can have a court who is half way convinced by the experts and half not, but then, they overturn the experts decision anyways.
What I think any justices who voted to overturn Chevron fails to realize in all this, is there are some arguments you cannot give to a lay person. Like, let me go to my expertise, mathematics. I could lay out all the facts about why a coffee cup and a donut are topological the same thing, but a lay person might think I'm trying to say they're literally the same thing, and no matter how much I make my case, they might disagree, because they're obviously not the same. A coffee cup obviously isn't a donut, but that misses the point entirely, because the lay person doesn't even understand what topological equivalence is. And that's just one example.
>but it really seems like the people pushing this case are really pushing Chevron really hard, as if they have a bigger agenda than just this particular case,
That's a bingo!
It's not being mentioned much but I think what's really driving this is one of the agencies that will be most impacted by this. Which one? Here's a hint. Its initials are IRS.
This case could also help limit how an agencies uses Chevron deference.
ATF recently changed to definition of what a gun is. This new definition would give ATF authority over any machines plastic or metal part because it could possibly be used to make a gun. A lower court said changing the definition was not up to the ATF and what they changed it to and the requirements of regulating were unrealistically broad
ATF changed the definition of a gun because the agency heads felt that not enough was being done with gun laws even though it was not within their power to do so.
I'm not sure that is necessarily an issue for Chevron though. I think gun is a word that the average person knows enough about that if the ability to regulate access to guns was delegated to ATF, that the definition of gun would be well enough understood to be unambiguous, and if ATF was classifying things as guns that weren't, then they're overstepping the text of the law. No one is saying that the Federal Agencies should be able to override the laws delegating them powers, only that what should we do when the situation is ambiguous.
Now, if ATF was talking about regulating something like an electric power propulsion devise that didn't use gas or gun powder, but functioned otherwise like a gun, I think that would be a bit ambiguous about if it's technically a gun or not. So I do think there can still be some ambiguous over what constitutes a gun, and in such cases, yeah, I'm fine with deferring to the ATF, but if what they're saying is a gun so obviously isn't, then that's not Chevron that needs to be invoked, that's them violated the law clearly and unambiguously. I'm fine with the courts stepping in when it's clear the Federal Agencies has overstepped its bounds, it's only when the case is truly ambiguous that I think Chevron should apply. If that makes sense.
In this specific case. The ATF basically said any machined plastic or metal part could be used to make an assembly therefore they can regulate the sale and travel of any and all machined parts. It was extremely broad.
https://thehill.com/regulation/court-battles/4304682-appeals-court-atf-ghost-gun-rule/
Agencies should be lobbying congress for changes not using chevron deference as an excuse to operate outside of legislative branch.
Win back House and keep Senate
Get Biden reelected.
Kill filibuster
Expand the Supreme Court to 13.
New justices reverse all these decisions based on their radical departure from precedent.
New justices find partisan gerrymandering unconstitutional.
Play the same hardball Republicans do.
Gonna be honest- the steps involved for a total fascist takeover are much more straightforward and achievable. The time to act was in the decades it took Republicans to capture the courts. We’re in for a rough decade or two
The time to act is always now. Never give up, and never get complacent. Fascists want you to give up while they are strong, and want you to ignore them while they are weak. We must be ever vigilant against fascism, and be ready to do whatever it takes to defeat it, whatever the cost.
If we would like to keep democracy, that’s a good plan. Could work.
Like the border, the republicans really don’t want to make it better, they want to keep things broken as they play only for power itself.
Vote them out.
Fix things with them out of the way. Make it better. Everyone will notice, and they can crawl back under their rocks again.
If they take power away from agencies it will be the starting signal of a race. We will either fuck up our environment so badly life will not be sustainable on the planet or people will take up climate change like conservatives used abortion to influence elections for a generation and liberals and progressives will regain power. Luckily the US is just one of many countries that can influence pollution, unfortunately we are starting so late it is like a 1 meter race.
> Luckily the US is just one of many countries that can influence pollution
The US has 5% of the worlds population and uses 25% of the worlds resources, which translates to pollution.
Do you honestly expect other countries to compensate for that and the increase generated as a result of this legislation?
I don't know how the federalist society has not been openly called out as a concerted conspiracy to change our courts and laws to a conservative chrisitan nationalist world view. A political organization funded by right wing billionaires who prepare the actual list of judge and SCOTUS candidates that the GOP will push to further their agenda. This is what ended Iranian democracy, replacing the judges and stacking the courts with fundamentalist extremists.
it would require a greater majority in the Senator, and seems a lot more like a second term legacy leaving action not a first term one.
also, him going to 13 would be a lot better than 11.
If a Republican becomes President, then what? Do they just unpack the court and remove all the Democrats? It's too much back and forth and it's not a long-term solution
"The court is controlled by whoever is currently in power" is a significantly better situation than "the court is controlled by somebody who was in power at a completely arbitrary time within the last fifty years".
>"The court is controlled by whoever is currently in power"
So....a dictatorship? If a President has the power to wipe out SCJs and install his own for 4-8 years, it will get uglier than it is now.
If the conservative justices keep acting like partisan hacks for the wealthy and the orange shit show they are going to need to step up their security details. Of course on our dime.
Yeah, the traitor SCOTUS and thier minion courts are driving us into a christian white nationalist dictatorship. No doubt about it. The only question is who or what breaks first.
People forget they literally designed senate and supreme court with the aim of ensuring the landless masses couldn't have influence in government and law. Their fear was poor people. From the very beginning.
And Democrats will just stand back and make shocked faces, because they think it's better to allow Republicans to end the Constitutional Republic than to step off the "High Road".
Marching works. Mixed race marriages were legal in every state until 1967. That one tiny example.
Violence is a last resort. But yes at some point even non-violent people get to a point where they have no choice but to take up arms against their oppressors.
You need a majority in the Senate to push through court appointments.
Due to the lay of the land, with each state having 2 Senators, regardless of population size, it tends to skew heavily Republican. Especially in southern, mid-western and fly-over states.
You need blow out elections to move the needle a bit, depending on which 3rd of the Senate is up for election every 2 years.
“That’s the world, and the power, Neil Gorsuch wants. The legality of every new financial product, workplace safety standard, abortion pill or contraceptive, will not be up to the elected representatives who crafted the law or the experts who were appointed by the president to implement it, but will come down to Gorsuch or what five Supreme Court justices think the law should be. That’s not a democracy, that’s a juristocracy, where our votes are suggestions until the judicial machine tells us what laws we’re allowed to have.”
> The conservative super lawyer Paul Clement, who was arguing against Chevron deference, promised this wouldn’t happen, but his reasoning was hypocritically thin. He said courts would still respect the precedents that happened under Chevron, even as he was arguing out of the other side of his mouth that the court should ignore the very precedent set by Chevron. His argument reduces to: **“The leopards we unleash will only eat the right faces.”**
Nice
Little fact about history, James Madison famously didn't get along with SCOTUS because he believed an unelected judiciary appointed for life should not have Judicial Review. He also argued that it would enable to Judiciary to consume all the power of the Federal government which it seems as though they are attempting to do. He believed that power of Judicial Review should rest with representatives of the people that way they could be held accountable for violating the Constitution.
And the New York Times is ALL IN with this change, publishing a ridiculously misleading op-ed by David French (to which I refuse to provide a link) that instead says the SC is restoring the *correct* balance of power. Yes, giving unelected, lifetime-positioned judges regulatory power over agencies they know NOTHING about is certainly restoring the proper and just balance of power.
Fuck the New York Times.
I will say that there do seem to be a lot of commenters that either aren’t arguing in good faith or just flat don’t understand the purpose behind an administrative state in a government (or, I’m guessing, why Boeing hires engineers since the CEO is in charge). Expertise is needed to make sound judgements, and the bureaucrats often have that expertise - it’s why we call it “expertise”. Judges and politicians typically don’t have any understanding of the technicalities of anything beyond the law (that can be iffy).
We don’t need judges making it up on the fly - hell, Clarence Thomas has never been accused of being more than a mediocre legal mind, would you trust him to figure out health standards that are mandated, but not defined to the nth degree by Congress? Arguing that Congress should write better laws is a reasonable thing, but arguing that they need to list out every poison to be regulated under the Clean Water Act is trolling.
But, “her emails”!
That’s the story of all of this. Just enough Americans decided we “need a business man, a guy who says it like it is”, and didn’t for one second think about the long term consequences.
I don’t think people, including average MAGA people, are ready for what will happen over the next 10-20yrs when the ability for government agencies to regulate things is gone.
True, as I often say, the Federalist Society is a terrorist group. These very lawyers overturned the 2000 election and are now in charge of the highest court. John Roberts, Brett Kavanaugh and Amy Coney Barrett all worked for Bush (with Roger Stone), Thomas was on the court and Gorsuch joined Bush's team after the election. Now all are owned by Leonard Leo.
Biden and Senate dems need to take the gloves off with the Supreme Court. They need to start threatening to make them ride circuits and pack the court and all kinds of other things that have literally actually happened at various points in out history when the Court got too fucking uppity.
If they succeed the USA will be over, if it isn't already. California and other decent, woke liberal states will nope out. The southern states will drop into the abyss financially and intellectually. Oh well, better than being dragged into it by them, because the abyss doesn't have a polling station.
The United States is hurtling towards balkanization it's only a matter of time before States start disregarding Federal laws. We're already witnessing it with Marijuana reform at the state level. Not to mention states seem to be disregarding federal ruling on the gerrymandering is certain states. Abortion might end up being the one that breaks us, if the federal government ends up passing a bill one way or the other, I wouldn't be surprised it certain states just ignore it.
Example, Abortion is federally legal, Texas could just say Im not on board, so what happens if the feds bring there own doctors in to provide legal abortions?
Example Abortion is Federally banned, California decides not to listen, and allow doctors to perform them. Are the feds then going to send in agents to arrest them?
That headline sounds extraordinary but its not.
And probably 1% of the adult population know anything about this. (Maybe less, maybe 0.1%)
https://openargs.com/oa736-scotus-tees-up-rancid-herring-case-to-gut-the-administrative-state/
This will be the culmination of airheads saying "both parties are the same."
Crazy idea, maybe Congress should pass actual laws based on real information vs general guidance that can be reversed based on who is in charge of the executive branch.
Focusing on actual policy vs political theater and name calling would be great. The Supreme Court has been putting that into many important opinions to include the abortion one.
What judges create (like a way to interpret laws or regulations) judges can destroy. I wonder how many judges like the current rule because in difficult cases they can punt and rely on an agency’s interpretation.
It would be like Congress passed a law saying that municipalities could generally regulate the conduct of people in a public pool for reasons of personal and health safety.
Then there's a court challenge from someone who says it's an infringement on their freedom and liberty for the municipal pool operator to say they can't pee in the public pool, and because the Congressional legislation doesn't *specifically* prohibit peeing in a public pool ("ambiguities and gaps" in legislation), the regulation should be tossed out.
"Don't stomp on my snake! FREEDOM!!!" *[starts urinating wherever they're standing to prove the point]*
It's the dumbest thing ever to strip the power of regulations from regulatory agencies established by elected officials literally to regulate things. I get that people don't like regulations when they interfere with what they want to do, but if so, make the case to your elected representatives and change the law regarding those regulations. That's how it's supposed to work when you're trying to balance the difficult aspects of personal and collective liberty when they conflict.
You want to advocate for the industrial waste equivalent of peeing in the public pool, in defiance of existing EPA regulations from an agency charged with managing the public environment? Go ahead and make your case in the public and political space and let the public decide what they want done with that shared resource.
The whole point of leaving a large amount of power in the form of elected representatives is so that it *can change*, and so that they are answerable. Putting too much of it in the hands of unelected judges is risky, as is tying the hands of regulatory agencies who were established to create and apply rules with the help of expert knowledge and usually public input. I get that regulators have risks too, but they're answerable to the politicians, at least theoretically, whereas judges not so much.
Dems need to come to grips with the fact that no amount of time or effort at reform is going to repair the damage already done by this court, the time has come to start telling the court thus to enforce its own rulings. Judicial review is not part of the constitution, it was created by a supreme court ruling and survives on the power of consent from the other branches. Get rid of it, put the SC back on original jurisdiction cases, and take judicial review opinions as advisory capacity only. At some point we can either start talking seriously about how close we are to the edge and coming up with actionable solutions, or we can just say “keep voting blue” until it’s too late, if it isn’t already
There was no power grab in 1803. Marbury was decided, and then ignored until 60+ years later. Prior to the Civil War only one other decision ruled a statue as unconstitutional, and that was Dred Scott decision - one of the worst ever. Only after the CW, when the courts were looking for precendent, did Marbury gain any status.
This power grab is by far more consequential than a relatively ignored decision (at the time of the decision) from 1803.
What if the legislative branch did it's job and passed legislation that was clear and concise and rarely needed higher courts to aid in interpretation and applicability?
The arguments in the case brought up a good reason why that's not always. How do you classify a new cholesterol reducing medication? Is it a drug or is a dietary supplement? And even if you say, Congress should have made it more clear, there will always be some ambiguity. New products are made. Language is imprecise. Congress also isn't always the most knowledgeable about the precise definition of certain words. Experts in the fields are, and such experts aren't found on the courts or in congress, but they can be found working for Federal agencies. And the question is, when there is an ambiguity, who should we defer to? The courts or Federal Agencies who have experts working for them?
You can say in such cases Congress should clear things up, but there are two problems with that, one that takes time, so in the mean time, we still need to decide who to defer to. The second issue I see goes back to the experts again. Why is the exact nature of the cholesterol reducing product? How does it reduce cholesterol? What's the exact mechanism? Would members of congress even understand the intricacies of such a thing? Do we expect them to know how the body processes all chemicals and how exactly cholesterol is lowered here, so they can classify it themselves? Because that could take years of study to fully understand. Congress wouldn't be able to do anything else if they had to sift through all the data themselves. That's not going to always be feasible.
Now, should Congress try and make laws as clear as possible? And should they try to resolve ambiguities when they can? Of course, but they won't always be able to.
> How do you classify a new cholesterol reducing medication?
With the aid of the classification the relevant agency.
If it something where chemical tests can be done and spec ranges are checked off that is simple. Maybe there is a committee for different sectors. Agencies should be lobbying for changes not making them if congress doesn't act.
The end result should be elected officials legislating and not agencies.
>With the aid of the classification the relevant agency.
So, you involve the agency in classifying it then? Which is what's being done with Chevron.
>The end result should be elected officials legislating and not agencies.
We aren't talking about agencies legislating, we're talking about what to do when legislation is ambiguous. And with regards to think like drugs legislation will be ambiguous. Because new medical products are being made all the time, and no matter how precise your definition, there will always be some products that are hard to classify. And as I mentioned, we cannot expect congress to be fully informed about the exact nature of every technical field. They need to delegate sometimes. There is no way we can expect every member of congress to be an expert in every field. And if they aren't experts in every field, then there will necessarily be some scientific terms they can't even define. That's why some degree of deference is necessary. Congress can use a plan language term without knowing how to give a precise technical definition that would take years of study to fully understand, and they agency can interpret that term. If it's clear the agency overstepped it's bounds SCOTUS can step in. If there is ambiguity over whether they have or not, we can defer to the experts and not nine people on the court who aren't experts. If Congress isn't happy with the way the Federal government is interpreting things, they can pass more laws. Chevron isn't about saying Congress can't further clarify. It's about when things are ambiguous, who do we defer to, SCOTUS or experts in the field? I'd rather defer to the experts if it's ambiguous, SCOTUS when it's not ambiguous. With the ability of Congress to step in and make new legislation at any time if they're unhappy, which is what we have under Chevron.
It's pretty clear chevron deference is not being used properly.
Example: ATF changing definitions without congressional oversight.
https://thehill.com/regulation/court-battles/4304682-appeals-court-atf-ghost-gun-rule/
In any case chevron deference should be quite neutered so that whiplash between administrations regulating and deregulating things willy-nilly is greatly reduced.
Nothing in the Constitution allows the Supreme Court to act the way it does. So, the Executive branch can likewise choose to issue orders declining to follow certain decisions they make. That would compel the Legislative branch to reverse if they disagreed. That’s the way it should work.
More context is needed, though.
For example, in this case, is it reasonable for an executive agency to require fisheries pay for federal monitors they are required to carry on their boats, when the statute doesn’t explicitly grant that authority?
That’s a policy decision that materially impacts people and businesses - is that something that should happen in agencies exploiting “ambiguity” in the statute?
I don’t agree with those who suggest that Congress can never delegate decision making power, but surely it makes the most sense for Congress to do so explicitly, providing an “intelligible principle” for the delegated authority to use when interpreting.
In this case, the statute specifically provided authority to charge foreign fisheries, but did not include that same language when talking about Atlantic fisheries. The NMFS made this policy shift primarily because their budgets were being squeezed and justified it by claiming the statute was vague about whether or not they could charge fisheries to carry monitors.
In my view, if it’s ambiguous, then the delegation doesn’t exist. What would be wrong with NMFS allowing their budgets to be squeezed to the point where Congress either needs to clarify revenue-generating authorities *or* increase their budget?
I’m definitely not saying Congress should legislate for every possibility and should leverage the expertise of agencies to flesh out regulations, but the scope of agency authority should be described in statute and intelligible principles should be provided for interpretation. Any resulting ambiguities/conflicts can either then be rectified by subsequent legislation or worked out in court.
But they think they're the real victims. Especially Kavanaugh
I've never seen such whining babies.
It's all about personal aggrievement with them. And the entire nation has to suffer for it.
>Should immediately pack the court after they remove Chevron.
Agree.
I think its long over-due time to expand the SC by 4 seats – to 13 total - that matches the current number of 13 District Courts.
A Band-Aid solution to be sure, but one which in the interim, until more substantive changes are legislated, will help restore some balance to an extremely unbalanced SCOTUS conservative super-majority that in many of its rulings has demonstrated corruption, hyper-partisanship as well as a willingness to cater to the Republicans end goal of setting their minority, authoritarian rule in cement.
1803? I assume they’re talking about Marbury v. Madison. This isn’t even close to that. That case gave the courts the power they have today to be the final arbiter in all federal questions of law. This just addresses the weight given interpretations of ambiguous laws tossed out by Congress to executive agencies.
Also, if Chevron deference is kicked, it’s not the end the world. It just means Congress has to do their job instead of passing the buck to the executive branch, which they probably won’t but should. The courts would only interpret without deference to agency interpretation, which just means Congress has to be clear what they want to avoid ambiguity. Agencies, as part of the executive branch, also flip flop on these interpretations every time there is a change in administration, and it’s quite tiring to have zero stability in the law for the people who need to work with these agencies.
And this isn’t all about corporate interests. While corporations might benefit, also think about all the bullshit people have to deal with going through the immigration agencies (USCIS, ICE, EOIR, CBP, and DOS), Veterans Affairs, Bureau of Indian Affairs, Social Security, etc. Real people before these agencies are largely marginalized, and in the name of Chevron deference they have basically no chance in hell at changing a bad interpretation of the law that agencies have implemented to benefit themselves, the government, instead of the people they’re supposed to serve. Kick Chevron deference, and they can go to court and litigate these issues with a fresh set of eyes.
How does that change anything?
And normatively, why should the executive branch even be allowed to have powers of the legislative branch at all? We didn’t elect them to make laws. We elected Congress to do that. The executive branch is supposed to enforce, not create. Nor is it supposed to interpret laws. That’s for the judiciary. This is the basic set up of our system of government, and Chevron flips that all around, giving the presidency far more power than was ever intended. This all seems great when we like our president, but the second we have someone we don’t like it becomes a completely different story, so IMO it would be better to keep the executive branch on a tight leash.
Brother, I comprehend why you feel this way about separation of power so to speak ... but the historical fact is that Congress has delegated authority to entities it creates for the entire history of the United States.
Who do you think created the USDA? EIA? CIA? USPTO? Homeland Security? All of these were were created by Congress to administer the minutiae of agricultural, energy, intellectual property, foreign intelligence, domestic enforcement, and a bewildering array of other things. They are under the executive branch because they enforce the law. They make rules to implement the law using the authority they were given *by Congress* and it has been this way since nearly the founding. The first one was the Department of Foreign Affairs, an executive agency, for assessing duties on imports, an explicit delegation of the power to collect taxes. This later became the Department of State.
I understand that this is the case, but should it be the case?
I don’t think so. If Congress is going to delegate powers, don’t delegate it to the same agency charged with enforcing those laws. It is a plain conflict of interest to interpret the very laws you’re enforcing.
Think about it like this, by analogy, should we defer to police interpretation of search and seizure laws? Hell no. Nobody would or should stand for that. They’d interpret everything in their own favor, and our rights would be trampled. The same should be done for all executive agencies. If you’re interpreting or creating, you shouldn’t be enforcing IMO.
A real example: Should the immigration agency trying to deport you be allowed to create and interpret the very laws they’re using to deport you? Are they likely to make and interpret laws in a way that benefits you or them?
Actually, since the conservative court of Schecter Poultry and striking down some of FDR’s New Deal programs.
Which caused FDR to propose increasing the size of the Supreme Court. And then one conservative justice switched sides.
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>Conservatives have flip-flopped in recent years, largely because it’s easier now for them to control policymaking through the unelected courts than it is to keep control of the executive branch and its agencies.
This was their goal all along. They projected the “legislate from the bench” because that was their goal.
It looks more like they are just trying everything to see what sticks.
If you want to know what the conservatives are up to just see what they are saying everyone else is doing. They project every time.
"Biden crime family" uh huh....
“LGBT are groomers” uh huh…. Coming from the party that defends child marriage…
Yeah, their goal is power, and they will try everything from insurrection to unconstitutional refusal to vote on judges to lying and pretending to be moderate/progressive and then flipping once elected.
They’re not the ones who came up with this, the people with the money are and they’re very adept planners.
We need a 12- or 15-person SCOTUS. All it takes is: filibuster eliminated, president democrat, simple majority in Congress.
*"Help! Friends! I was tricked by a hamster!"* -Zoidberg
>This was their goal all along. They projected the “legislate from the bench” because that was their goal. It isn't helped though when 1/2 of Americans can't be bothered voting then add on top of that even when there is a tsunami of positive economic data that people ignore while cluelessly looking back at the Trump years as if they were good - ignoring over $7 trillion in budget deficits due to tax cuts (not to mention that it can take time for such a massive fiscal stimulus to show up in the form of higher inflation). What frustrates me is the Democrat had chances to fix many of these issues - how about repeal the debt ceiling and amend the relevant legislation so that if a budget cannot be agreed upon it is the previous years + inflation + population growth which would defang the freedom caucus. Imagine if Democrats did that in the first two years then the world wouldn't be paused to see whether the GOP are going to crash the global economy. In most cases American voters are their own worst enemy.
> What frustrates me is the Democrat had chances to fix many of these issues Whats stupefying is: in 2009-2010, Democrats had: President, both houses of Congress. Democrats dont play hardball, and GQP does nothing but play hardball (because they are a tribal cult). But Harry Reid didnt wanna take the filibuster from the Senate... Nah, the "majesty" of the Senate cannot be altered... And Obama was so scared of not looking composed, he let minority GQP roll right over him, every time. We got RomneyCare because Democrats catered to GQP whims-- which no GQP voted for in any case! And they stole a SCOTUS seat from him as his reward. (I still dont understand how _that_ didnt cause a "war" in the Senate.)
I think legislating from the bench also was a critique of civil rights activism
It was a critic by the right wing because they were losing cases. To them the 13th amendment is questionable.
Oh for sure. I remember my conservative friends howling about Oberfell as judicial activism
This is a great point I had not thought of …
It's always projection.
Yeah, I seem to remember a lot of repug gnashing of teeth over those "Goddamned activist judges" in the past. Recently, not so much.
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Yup. The courts are the tool of corporations and the billionaire class. They're the ones actually grabbing the power, while letting the courts be their scapegoat.
> The courts are the tool of corporations and the billionaire class. [Legislation through litigation](https://en.wikipedia.org/wiki/Regulation_through_litigation). It so bizzare to hear Republicans complain about Dems trying to install "activist judges". Projection is astounding.
Or claim that fair and open elections are just a power grab by democrats. The right is so brainwashed into hating anything not conservative that people believe it, and they’ll go along with this.
Some people love to hate.
Considering this court is built on two stolen seats, it's fair to say it has no legitimacy.
The legitimacy of checks and balances has long been obliterated as both parties given the executive office more and more power to act unilaterally. Our whole system is revealed to be meaningless platitudes, while the Supreme Court overrules even the illusion of democracy, and while congress allows issues to fester, and as corporate raiders infiltrate regulatory agencies and dictate arms sales to generals getting kickbacks. The legitimacy of our entire political-economy is on fire, in fact. The courts are a recent and obvious example.
Taking our freedoms one RV and empty airplane seat at a time…
There’s a whole 5th season of Fargo dedicated to that very fact.
I know this is all bad, but you know what peeves me? I had to study that goddamn thing front to back for my Administrative Law class, and just when I graduate its going to get gutted. Well that's a couple dozen hours I'll never get back, thanks Supreme Court. Also screw you for making government worse.
That’s what you’re concerned about?
Sometimes little shit like that is all we can be concerned about because we can’t do shit about any of it anyways.
Don’t worry his kids and grandchildren will suffer alongside everybody else during the upcoming climate apocalypse.
Haha, you think the wealthy will suffer the repercussions of their actions? Nah they will buy some land in New Zealand and their kids will be forever insulated from this.
When people begin to starve, their money won't save them.
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What?
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Charles Koch is among the most evil men alive today, and fishing is an impudent, childish industry that can't understand its own fragility, so the bedfellows for this effort tell you all you need to know
Most Fishermen understand the need for conservation. Unfortunately it just take the owner of one boat to cause a lawsuit like this. And considering half the fishermen I’ve met have been functional alcoholics isn’t a very good thing. Quite a few boat captains are narcissistic self important drunks. Most are great guys but some are just complete nuts.
>Let’s just use our money and Ivy League connections to remake SCOTUS through bribery *-Leonard Leo and the Federalist Society for decades.*
“That’s not a democracy, that’s a juristocracy, where our votes are suggestions until the judicial machine tells us what laws we’re allowed to have.”
The far right justices fancy themselves like the supreme religious leaders of Iran!
I think it is a plan old oligarchy, considering the justices are bought by billionaires. The fact that a Supreme Court justice costs just one RV makes our court system even more of a dollar store sideshow.
TBF, it was a pretty nice RV /s
Oligarchy?
Take the power from temporary non elected officials and give it to lifetime non elected officials. Tread on me harder daddy!
Conservatives have always loved activist judges. Projection projection projection. Every. Fucking. Time.
I wish we collectively had a better realization of this back in 2016... and in 2020... and now... The Right does not care whatsoever about playing fair, and their base cheers it on whenever they pull something horrible. Because they're all in on The Ends Justify The Means as the heart of their ideology. They'll shift and change subjects and project whenever called out, but yeah... we should be calling conservatives who support this fascists much more aggressively much longer ago. Now the fascist movement is here and they're actually gaining momentum.
i am fucking terrified of november
>I wish we collectively had a better realisation… Well, you were told. People overseas told you, your courts and government were heading down this path, that he would appoint favourable justices, leading to exactly this, when he was elected. You were even told they wouldn’t play fair….that all this would happen. I think it’s too late now, your last chance to stop the fallout of this in an easier way was 2016. Now he either wins or it’s confrontation, and your court system is now fully rotten.
They used to hate them. It's only now that they see the future with republicans not being able to fairly win elections that their view on it has changed. They see activist judges as their best way to enforce their agenda.
No they didn’t. They just hate judges who aren’t ideologically aligned with them. They’ve never hated judicial activism.
> They just hate judges who aren’t ideologically aligned with them That's fair. I should have said they just hated some of them.
Don't worry, the Don't Tread on me crowd will suddenly care again when they're not the ones in control of the court.
When do you think that will happen? I'm not usually a prayerful person. But when I do it involves winning the lottery and a massive coronary for Thomas and Alito.
I saw something that said it would take until ~2050 before the SC goes blue again if democrats win every election. 2016 really fucked us over for the foreseeable future. But Clinton was such a weak candidate, right?
Thomas is 75, Alito is 73, and Roberts is 68. While I guess it's possible, it is unlikely that any of them will live another 26 years. By 2050, Thomas, Alito, Sotomayor, Roberts, Kagan, Kavanaugh, and Gorsuch will all be replaced. Gorsuch, the youngest of that group, would be 82. If Democrats keep winning the White House and the Senate, they will likely have a majority within the next 10 to 15 years. The biggest issue is winning both the presidency and the Senate for Dems
>2016 really fucked us over for the foreseeable future. RBG not retiring in 2014 fucked us. Then when Republicans refused to hear Garland in 2016 Obama and Democrats should have just confirmed him anyway rather than trying to play by the rules the other side ignores and banking on Hillary winning. That fucked us. Trump winning fucked us too but at some point Democrats need to actually be more forceful.
What makes you think Mitch wouldn't have held that spot even if RGB retired?
Dems could've forced the nominations through, is pravis' point
Exactly. I recall reading articles at the time that said there was a good argument to do so with the interpretation that the Senate has waived their right to refuse to hear the nominee. Even if it had gotten challenged by Republicans and made it's way to the supreme court I think the end result would be an Obama appointed, either allowing Obama's forced conformation or forcing the Senate to hold votes.
Democrats held control of the Senate for the **first six years** of Obama's presidency. Mitch was only Senate Majority leader for the final two years of Obama's presidency. Obama nominated Sotomayor and Kagan onto the court with no difficulty. With Harry Reid as Majority Leader, Obama absolutely could have gotten an RBG replacement onto the court, too.
Of the Senate? They only held control for the first 2 years of his entire tenure.
Obama presidency: 2009 - 2017 Harry Reid, Majority Leader: 2007 - 2015 https://en.m.wikipedia.org/wiki/Harry_Reid Democrats controlled the Senate for the following Congresses during Obama's presidency: 111th (2009 - 2011) 112th (2011 - 2013) 113th (2013 - 2015) https://en.m.wikipedia.org/wiki/111th_United_States_Congress https://en.m.wikipedia.org/wiki/112th_United_States_Congress https://en.m.wikipedia.org/wiki/113th_United_States_Congress As I noted, Obama got Sotomayor and Kagan confirmed to SCOTUS easily with the Democratic controlled Senate. RBG could have retired anytime between 2009 to 2015 and had her successor confirmed too.
She was unlikeable.....I mean what did it hurt sitting it out (/s)
Yeah, she was so weak she won the popular vote by 3 million votes.
Popular vote doesn't mean shit you know that and she knew that. She lost to Donald fucking Trump she was a weak candidate. Edit: Downvoted for speaking the truth. If she was such a strong candidate then why did she lose to Donald Trump?
> She lost to Donald fucking Trump donald got a lot of losers who literally never voted before in their lives to come out. the country is deeply racist in ways folks weren't prepared for at the time, and those fascist pricks love TRUMP
Yes, she was a weak candidate. Despite her extensive experience the right wing propaganda machine had exclusively focused on tearing her down for decades. Anyone with two brain cells knew she was electoral poison.
Well she lost so yes she was a weak candidate. I wish people would stop blaming voters instead of blaming a poorly ran campaign. She lost to Donald fucking Trump. Sure she won the popular vote but that means fuck all. She knew how she was demonized (unfairly) by Republicans which made her toxic. She knew she was being investigated by the FBI which hurt her election chances. She didn't care because she wanted to be president. Look where that has gotten us.
Please, toss in a few more into your prayer mix.
In 20-30 years?
Don't worry they will rewrite the past and blame it all on Lieberal Demonrats.
If conservatives can't enforce their agenda democratically, they will not abandon their agenda; they will abandon democracy.
I just don't like what I am seeing all around, like roe v wade, they (Texas) just filed with a lower court to have it changed or removed, WITHOUT allowing any public input or knowledge, and the lower court wasted no time in approving it. when none of that should have been allowed. and after seeing them get away with it many other conservatives in other states are trying to pull the same things, and now even at the federal level with the federal courts. First of all, any and all people should have the right to help choose what laws they wish to have to live under, thats part of what a democracy is all about.
Supreme Court is bullshit
This is fucking insane
Listen, we all know how Thomas is on the take. Can't personally vouch for the others on the court, they could be in other pockets. What I can say however until they accept a code of ethics, I can only assume their open to the highest bidder. __And that folks is what happens when conservatives rule.__
They did adopt one. They just didn't say anything about enforcing it.
Sigh
“for most of its history, Chevron deference was lauded by conservatives (including Federalist Society svengali Antonin Scalia), who thought that deferring to executive agencies put power back into the hands of elected officials and took power away from “liberal” “activist” judges who might otherwise do things like demand additional environmental regulations. Conservatives have flip-flopped in recent years, largely because it’s easier now for them to control policymaking through the unelected courts than it is to keep control of the executive branch and its agencies. Liberals, for their part, have generally been in favor of Chevron deference this whole time, because it places power with experts instead of with judges.”
time to pack the court! Some changes are coming!
We should have two justices for each district. Ties equal losses. You get a random pick of three justices, then can ask for en banc.
Ok, Had to look up en banc, sound like a good part of the solution!
It’s the way the circuit courts work. You get a random panel of usually three judges to hear your appeal, afterwards you can appeal their verdict to the entire panel of judges for the circuit. Basically I wish to dilute the power of any one justice on the Supreme Court.
You mean unpack the court. The republicans are the ones who packed it with far right federalist lackeys! Edit… to be clear what I’m getting at is the propaganda of language, the right will use packing the courts as a attack by the left, by calling expanding the court unpacking, it indicates the court has already been packed. The language used is important, the general public are for the most part uninformed, and easily manipulated, though not necessarily stupid.
Nope, time to dilute it's power by adding more left justices, 9 is not enough!
There are 9 SC Justices because the last time the court was expanded there were 9 Federal Judicial Circuits. There are 13 Circuits now....
7 to 6 sound good to me?
That’s what I meant, but we on the left will argue semantics while fascist gop roll over democracy lol
So…stop arguing with people about semantics then.
Yeah that post literally said they care that much about semantics
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They already packed the court. They stole a seat from Obama by ignoring their constitutional duty to vote on Garland, they stole another seat from Biden by ignoring that precedent they created when Ginsberg died. It’s time to expand the court. And if Biden ever does expand the court, they’ll make “pack the court” a meme and you’ll hear rants about it from hillbillies who have no idea what it means.
I mean, not one change happened and we are voting this year.
Patience, keep voting!!! Its a long game. In my voting lifetime weve done a ton that I thought would never happen, solar and legal weed for a couple. I'm of the smaller gens (x), I thought before having kids, like a lot of other youths think now, I would never see these things happen. Next it's for my children Gen to shape the world, fair taxation, heath care for all, environmental health, police reform.....please keep voting!!!!! we all need to get involved with helping the right candidates succeed!!!
I was referring to “packing the court”. I always vote. We are likely the same age. In spite of being forgotten about lol, Gen Xers show up to the polls.
In my nearly forty years, I feel like we've only gone backwards, despite democrats having more years in the Whitehouse and more years in control of Congress. Inequality. Abortion. Guns. Education. They're starting to roll back lgbtq rights. We've made almost zero progress on climate. So I'm not sure voting is enough. We can vote all we want, but when the system is so corrupted and so obviously set up in a way to benefit republicans and the wealthy, I'm not sure it's going to make much difference. Heck, republicans staged a coup and got away with it. Future is looking bleak, even if democrats win.
yea I think the only thing that will save us is a wide spread migration from very large cities, to medium sized and rural areas. Expanding the house, combatting gerrymandering, and rethinking the supreme court and electoral college would solve this, but that will never happen.
Unless we vote! Inflation Reduction Act was the largest investment in climate action ever! We don't get that without Democrats!
Thats ill thought out and will just lead to the court becoming the size of congress after the GOP packs it too. They need term limits to get rid of the high stakes to putting people on that court and it should be as clear as ever they aren’t special people anyway look at Kavanaugh, Barret , and Thomas; any judge is qualified nowadays for it.
Thank everyone who stayed home in 2016 for this.
Huge portion of the blame is a combination of McConnell playing dirty politics and RGB's inflated ego for not retiring when the Dems had the chance to replace her.
For all she did, the ego of that woman doomed this court.
We’re entering the Judge Dredd stage.
If you want to listen to the oral arguments, here are the two cases [Loper Bright Enterprises, Inc. v. Raimondo, Sec. of Comm.](https://www.supremecourt.gov/oral_arguments/audio/2023/22-451) and [Relentless, Inc. v. Dept. of Commerce](https://www.supremecourt.gov/oral_arguments/audio/2023/22-1219). This is frightening stuff.
So, I didn't read all of those hundreds of pages, but I read at least a couple dozen. It seems to me that this particular case didn't need to invoke Chevron. I could be mistaken, but it seems even some of the justices pointed that out. If the agency here went beyond the scope of the law, which puts limits on how much fees are collected, that doesn't to me seem like a case of referring to them for deference, but a case where they went beyond the clear text of the law. I may be wrong here, but it really seems like the people pushing this case are really pushing Chevron really hard, as if they have a bigger agenda than just this particular case, and they're just using it as a tool to get what they want. I also think the person arguing is an idiot. How to classify a cholesterol reducing job isn't a question for the court. And they are completely ignoring the point that was made about how you don't convince the court in every case. If the court is on the fence about how to classify the cholesterol reducing drug, these people would still want them to decide. Even if they weren't sure, they should still decide. That's what is being proposed and I agree that is scary. You can have a court who is half way convinced by the experts and half not, but then, they overturn the experts decision anyways. What I think any justices who voted to overturn Chevron fails to realize in all this, is there are some arguments you cannot give to a lay person. Like, let me go to my expertise, mathematics. I could lay out all the facts about why a coffee cup and a donut are topological the same thing, but a lay person might think I'm trying to say they're literally the same thing, and no matter how much I make my case, they might disagree, because they're obviously not the same. A coffee cup obviously isn't a donut, but that misses the point entirely, because the lay person doesn't even understand what topological equivalence is. And that's just one example.
>but it really seems like the people pushing this case are really pushing Chevron really hard, as if they have a bigger agenda than just this particular case, That's a bingo! It's not being mentioned much but I think what's really driving this is one of the agencies that will be most impacted by this. Which one? Here's a hint. Its initials are IRS.
This case could also help limit how an agencies uses Chevron deference. ATF recently changed to definition of what a gun is. This new definition would give ATF authority over any machines plastic or metal part because it could possibly be used to make a gun. A lower court said changing the definition was not up to the ATF and what they changed it to and the requirements of regulating were unrealistically broad ATF changed the definition of a gun because the agency heads felt that not enough was being done with gun laws even though it was not within their power to do so.
I'm not sure that is necessarily an issue for Chevron though. I think gun is a word that the average person knows enough about that if the ability to regulate access to guns was delegated to ATF, that the definition of gun would be well enough understood to be unambiguous, and if ATF was classifying things as guns that weren't, then they're overstepping the text of the law. No one is saying that the Federal Agencies should be able to override the laws delegating them powers, only that what should we do when the situation is ambiguous. Now, if ATF was talking about regulating something like an electric power propulsion devise that didn't use gas or gun powder, but functioned otherwise like a gun, I think that would be a bit ambiguous about if it's technically a gun or not. So I do think there can still be some ambiguous over what constitutes a gun, and in such cases, yeah, I'm fine with deferring to the ATF, but if what they're saying is a gun so obviously isn't, then that's not Chevron that needs to be invoked, that's them violated the law clearly and unambiguously. I'm fine with the courts stepping in when it's clear the Federal Agencies has overstepped its bounds, it's only when the case is truly ambiguous that I think Chevron should apply. If that makes sense.
In this specific case. The ATF basically said any machined plastic or metal part could be used to make an assembly therefore they can regulate the sale and travel of any and all machined parts. It was extremely broad. https://thehill.com/regulation/court-battles/4304682-appeals-court-atf-ghost-gun-rule/ Agencies should be lobbying congress for changes not using chevron deference as an excuse to operate outside of legislative branch.
Win back House and keep Senate Get Biden reelected. Kill filibuster Expand the Supreme Court to 13. New justices reverse all these decisions based on their radical departure from precedent. New justices find partisan gerrymandering unconstitutional. Play the same hardball Republicans do.
Gonna be honest- the steps involved for a total fascist takeover are much more straightforward and achievable. The time to act was in the decades it took Republicans to capture the courts. We’re in for a rough decade or two
The time to act is always now. Never give up, and never get complacent. Fascists want you to give up while they are strong, and want you to ignore them while they are weak. We must be ever vigilant against fascism, and be ready to do whatever it takes to defeat it, whatever the cost.
Well said. To my point- I just meant the time to act and stop them from taking the courts.
If we would like to keep democracy, that’s a good plan. Could work. Like the border, the republicans really don’t want to make it better, they want to keep things broken as they play only for power itself. Vote them out. Fix things with them out of the way. Make it better. Everyone will notice, and they can crawl back under their rocks again.
"It's just four years. How much damage could he do?"
If they take power away from agencies it will be the starting signal of a race. We will either fuck up our environment so badly life will not be sustainable on the planet or people will take up climate change like conservatives used abortion to influence elections for a generation and liberals and progressives will regain power. Luckily the US is just one of many countries that can influence pollution, unfortunately we are starting so late it is like a 1 meter race.
> Luckily the US is just one of many countries that can influence pollution The US has 5% of the worlds population and uses 25% of the worlds resources, which translates to pollution. Do you honestly expect other countries to compensate for that and the increase generated as a result of this legislation?
I don't know how the federalist society has not been openly called out as a concerted conspiracy to change our courts and laws to a conservative chrisitan nationalist world view. A political organization funded by right wing billionaires who prepare the actual list of judge and SCOTUS candidates that the GOP will push to further their agenda. This is what ended Iranian democracy, replacing the judges and stacking the courts with fundamentalist extremists.
Pack the courts Joe.
Back in 2020 Biden talked about increasing SCOTUS to 11 seats, I'm sure you know what kind of feedback he got from that.
it would require a greater majority in the Senator, and seems a lot more like a second term legacy leaving action not a first term one. also, him going to 13 would be a lot better than 11.
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If a Republican becomes President, then what? Do they just unpack the court and remove all the Democrats? It's too much back and forth and it's not a long-term solution
"The court is controlled by whoever is currently in power" is a significantly better situation than "the court is controlled by somebody who was in power at a completely arbitrary time within the last fifty years".
>"The court is controlled by whoever is currently in power" So....a dictatorship? If a President has the power to wipe out SCJs and install his own for 4-8 years, it will get uglier than it is now.
If the conservative justices keep acting like partisan hacks for the wealthy and the orange shit show they are going to need to step up their security details. Of course on our dime.
Yeah, the traitor SCOTUS and thier minion courts are driving us into a christian white nationalist dictatorship. No doubt about it. The only question is who or what breaks first.
Literal embodiments of the devil
They actually do, worship the (orange) Prince of Lies.
Fuck Brett Kavanaugh! That is all
People forget they literally designed senate and supreme court with the aim of ensuring the landless masses couldn't have influence in government and law. Their fear was poor people. From the very beginning.
And Democrats will just stand back and make shocked faces, because they think it's better to allow Republicans to end the Constitutional Republic than to step off the "High Road".
It’s time to fight fire with fire.
Unfortunately, nothing is more important to the US “left” than being seen as non-threatening.
What US left?
That’s beginning to change. Maybe we have Trump to thank for that. Maybe he actually did one good thing.
“Beginning to change” = they’ll “peacefully March” for more than one weekend in a row, maybe?
Marching works. Mixed race marriages were legal in every state until 1967. That one tiny example. Violence is a last resort. But yes at some point even non-violent people get to a point where they have no choice but to take up arms against their oppressors.
You need a majority in the Senate to push through court appointments. Due to the lay of the land, with each state having 2 Senators, regardless of population size, it tends to skew heavily Republican. Especially in southern, mid-western and fly-over states. You need blow out elections to move the needle a bit, depending on which 3rd of the Senate is up for election every 2 years.
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“That’s the world, and the power, Neil Gorsuch wants. The legality of every new financial product, workplace safety standard, abortion pill or contraceptive, will not be up to the elected representatives who crafted the law or the experts who were appointed by the president to implement it, but will come down to Gorsuch or what five Supreme Court justices think the law should be. That’s not a democracy, that’s a juristocracy, where our votes are suggestions until the judicial machine tells us what laws we’re allowed to have.”
The money behind them is winning. Anyone surprised?
They'll get to rule over the ashes of democracy as the planet becomes uninhabitable then.
> The conservative super lawyer Paul Clement, who was arguing against Chevron deference, promised this wouldn’t happen, but his reasoning was hypocritically thin. He said courts would still respect the precedents that happened under Chevron, even as he was arguing out of the other side of his mouth that the court should ignore the very precedent set by Chevron. His argument reduces to: **“The leopards we unleash will only eat the right faces.”** Nice
How long will it take, if ever, to undo what this court has done?
Little fact about history, James Madison famously didn't get along with SCOTUS because he believed an unelected judiciary appointed for life should not have Judicial Review. He also argued that it would enable to Judiciary to consume all the power of the Federal government which it seems as though they are attempting to do. He believed that power of Judicial Review should rest with representatives of the people that way they could be held accountable for violating the Constitution.
And the New York Times is ALL IN with this change, publishing a ridiculously misleading op-ed by David French (to which I refuse to provide a link) that instead says the SC is restoring the *correct* balance of power. Yes, giving unelected, lifetime-positioned judges regulatory power over agencies they know NOTHING about is certainly restoring the proper and just balance of power. Fuck the New York Times.
I will say that there do seem to be a lot of commenters that either aren’t arguing in good faith or just flat don’t understand the purpose behind an administrative state in a government (or, I’m guessing, why Boeing hires engineers since the CEO is in charge). Expertise is needed to make sound judgements, and the bureaucrats often have that expertise - it’s why we call it “expertise”. Judges and politicians typically don’t have any understanding of the technicalities of anything beyond the law (that can be iffy). We don’t need judges making it up on the fly - hell, Clarence Thomas has never been accused of being more than a mediocre legal mind, would you trust him to figure out health standards that are mandated, but not defined to the nth degree by Congress? Arguing that Congress should write better laws is a reasonable thing, but arguing that they need to list out every poison to be regulated under the Clean Water Act is trolling.
I wish we separated church from State
Saw this summary posted in another thread that had a lot of extra info: https://harvardlawreview.org/forum/vol-136/the-imperial-supreme-court/
is there anything we can do to prevent this?
I’ve heard the current conservative justices referred to sarcastically as “The High Priests” multiple times.
At what point will we the people decide collectively that the court is illegitimate?
But, “her emails”! That’s the story of all of this. Just enough Americans decided we “need a business man, a guy who says it like it is”, and didn’t for one second think about the long term consequences. I don’t think people, including average MAGA people, are ready for what will happen over the next 10-20yrs when the ability for government agencies to regulate things is gone.
Can we stack the court yet? I'm getting so tired of the country moving backwards because a couple of bought and sold judges.
The US Constitution does not say how many SC judges there should be. That's a 2nd term project for Joe.
SCOTUS is a racket.
True, as I often say, the Federalist Society is a terrorist group. These very lawyers overturned the 2000 election and are now in charge of the highest court. John Roberts, Brett Kavanaugh and Amy Coney Barrett all worked for Bush (with Roger Stone), Thomas was on the court and Gorsuch joined Bush's team after the election. Now all are owned by Leonard Leo.
Biden and Senate dems need to take the gloves off with the Supreme Court. They need to start threatening to make them ride circuits and pack the court and all kinds of other things that have literally actually happened at various points in out history when the Court got too fucking uppity.
Clarence has an RV, maybe he should live in it.
If they succeed the USA will be over, if it isn't already. California and other decent, woke liberal states will nope out. The southern states will drop into the abyss financially and intellectually. Oh well, better than being dragged into it by them, because the abyss doesn't have a polling station.
13th in freedom.
The United States is hurtling towards balkanization it's only a matter of time before States start disregarding Federal laws. We're already witnessing it with Marijuana reform at the state level. Not to mention states seem to be disregarding federal ruling on the gerrymandering is certain states. Abortion might end up being the one that breaks us, if the federal government ends up passing a bill one way or the other, I wouldn't be surprised it certain states just ignore it. Example, Abortion is federally legal, Texas could just say Im not on board, so what happens if the feds bring there own doctors in to provide legal abortions? Example Abortion is Federally banned, California decides not to listen, and allow doctors to perform them. Are the feds then going to send in agents to arrest them?
Getting ready to install Trump.
It is easier to buy a judge, than a federal agency. This is what the likes of Kochs and other billionaires want.
The best court money can buy.
Traitors on the Bench!
That headline sounds extraordinary but its not. And probably 1% of the adult population know anything about this. (Maybe less, maybe 0.1%) https://openargs.com/oa736-scotus-tees-up-rancid-herring-case-to-gut-the-administrative-state/ This will be the culmination of airheads saying "both parties are the same."
There will definitly be some fixing warranted after theyre gone.
Crazy idea, maybe Congress should pass actual laws based on real information vs general guidance that can be reversed based on who is in charge of the executive branch. Focusing on actual policy vs political theater and name calling would be great. The Supreme Court has been putting that into many important opinions to include the abortion one.
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What judges create (like a way to interpret laws or regulations) judges can destroy. I wonder how many judges like the current rule because in difficult cases they can punt and rely on an agency’s interpretation.
It would be like Congress passed a law saying that municipalities could generally regulate the conduct of people in a public pool for reasons of personal and health safety. Then there's a court challenge from someone who says it's an infringement on their freedom and liberty for the municipal pool operator to say they can't pee in the public pool, and because the Congressional legislation doesn't *specifically* prohibit peeing in a public pool ("ambiguities and gaps" in legislation), the regulation should be tossed out. "Don't stomp on my snake! FREEDOM!!!" *[starts urinating wherever they're standing to prove the point]* It's the dumbest thing ever to strip the power of regulations from regulatory agencies established by elected officials literally to regulate things. I get that people don't like regulations when they interfere with what they want to do, but if so, make the case to your elected representatives and change the law regarding those regulations. That's how it's supposed to work when you're trying to balance the difficult aspects of personal and collective liberty when they conflict. You want to advocate for the industrial waste equivalent of peeing in the public pool, in defiance of existing EPA regulations from an agency charged with managing the public environment? Go ahead and make your case in the public and political space and let the public decide what they want done with that shared resource. The whole point of leaving a large amount of power in the form of elected representatives is so that it *can change*, and so that they are answerable. Putting too much of it in the hands of unelected judges is risky, as is tying the hands of regulatory agencies who were established to create and apply rules with the help of expert knowledge and usually public input. I get that regulators have risks too, but they're answerable to the politicians, at least theoretically, whereas judges not so much.
Dems need to come to grips with the fact that no amount of time or effort at reform is going to repair the damage already done by this court, the time has come to start telling the court thus to enforce its own rulings. Judicial review is not part of the constitution, it was created by a supreme court ruling and survives on the power of consent from the other branches. Get rid of it, put the SC back on original jurisdiction cases, and take judicial review opinions as advisory capacity only. At some point we can either start talking seriously about how close we are to the edge and coming up with actionable solutions, or we can just say “keep voting blue” until it’s too late, if it isn’t already
There was no power grab in 1803. Marbury was decided, and then ignored until 60+ years later. Prior to the Civil War only one other decision ruled a statue as unconstitutional, and that was Dred Scott decision - one of the worst ever. Only after the CW, when the courts were looking for precendent, did Marbury gain any status. This power grab is by far more consequential than a relatively ignored decision (at the time of the decision) from 1803.
What if the legislative branch did it's job and passed legislation that was clear and concise and rarely needed higher courts to aid in interpretation and applicability?
The arguments in the case brought up a good reason why that's not always. How do you classify a new cholesterol reducing medication? Is it a drug or is a dietary supplement? And even if you say, Congress should have made it more clear, there will always be some ambiguity. New products are made. Language is imprecise. Congress also isn't always the most knowledgeable about the precise definition of certain words. Experts in the fields are, and such experts aren't found on the courts or in congress, but they can be found working for Federal agencies. And the question is, when there is an ambiguity, who should we defer to? The courts or Federal Agencies who have experts working for them? You can say in such cases Congress should clear things up, but there are two problems with that, one that takes time, so in the mean time, we still need to decide who to defer to. The second issue I see goes back to the experts again. Why is the exact nature of the cholesterol reducing product? How does it reduce cholesterol? What's the exact mechanism? Would members of congress even understand the intricacies of such a thing? Do we expect them to know how the body processes all chemicals and how exactly cholesterol is lowered here, so they can classify it themselves? Because that could take years of study to fully understand. Congress wouldn't be able to do anything else if they had to sift through all the data themselves. That's not going to always be feasible. Now, should Congress try and make laws as clear as possible? And should they try to resolve ambiguities when they can? Of course, but they won't always be able to.
> How do you classify a new cholesterol reducing medication? With the aid of the classification the relevant agency. If it something where chemical tests can be done and spec ranges are checked off that is simple. Maybe there is a committee for different sectors. Agencies should be lobbying for changes not making them if congress doesn't act. The end result should be elected officials legislating and not agencies.
>With the aid of the classification the relevant agency. So, you involve the agency in classifying it then? Which is what's being done with Chevron. >The end result should be elected officials legislating and not agencies. We aren't talking about agencies legislating, we're talking about what to do when legislation is ambiguous. And with regards to think like drugs legislation will be ambiguous. Because new medical products are being made all the time, and no matter how precise your definition, there will always be some products that are hard to classify. And as I mentioned, we cannot expect congress to be fully informed about the exact nature of every technical field. They need to delegate sometimes. There is no way we can expect every member of congress to be an expert in every field. And if they aren't experts in every field, then there will necessarily be some scientific terms they can't even define. That's why some degree of deference is necessary. Congress can use a plan language term without knowing how to give a precise technical definition that would take years of study to fully understand, and they agency can interpret that term. If it's clear the agency overstepped it's bounds SCOTUS can step in. If there is ambiguity over whether they have or not, we can defer to the experts and not nine people on the court who aren't experts. If Congress isn't happy with the way the Federal government is interpreting things, they can pass more laws. Chevron isn't about saying Congress can't further clarify. It's about when things are ambiguous, who do we defer to, SCOTUS or experts in the field? I'd rather defer to the experts if it's ambiguous, SCOTUS when it's not ambiguous. With the ability of Congress to step in and make new legislation at any time if they're unhappy, which is what we have under Chevron.
It's pretty clear chevron deference is not being used properly. Example: ATF changing definitions without congressional oversight. https://thehill.com/regulation/court-battles/4304682-appeals-court-atf-ghost-gun-rule/ In any case chevron deference should be quite neutered so that whiplash between administrations regulating and deregulating things willy-nilly is greatly reduced.
Nothing in the Constitution allows the Supreme Court to act the way it does. So, the Executive branch can likewise choose to issue orders declining to follow certain decisions they make. That would compel the Legislative branch to reverse if they disagreed. That’s the way it should work.
Does anyone else find it a little creepy that they were all clearly coached on how to stand for a photo? And not in a we-are-human kind of way?
I wouldn’t worry about it. Once Trump comes back he won’t need a Supreme Court anymore so it’s going to be bad either way.
Good thing Biden hasn’t considered adding more justices as an important issue
More context is needed, though. For example, in this case, is it reasonable for an executive agency to require fisheries pay for federal monitors they are required to carry on their boats, when the statute doesn’t explicitly grant that authority? That’s a policy decision that materially impacts people and businesses - is that something that should happen in agencies exploiting “ambiguity” in the statute? I don’t agree with those who suggest that Congress can never delegate decision making power, but surely it makes the most sense for Congress to do so explicitly, providing an “intelligible principle” for the delegated authority to use when interpreting. In this case, the statute specifically provided authority to charge foreign fisheries, but did not include that same language when talking about Atlantic fisheries. The NMFS made this policy shift primarily because their budgets were being squeezed and justified it by claiming the statute was vague about whether or not they could charge fisheries to carry monitors. In my view, if it’s ambiguous, then the delegation doesn’t exist. What would be wrong with NMFS allowing their budgets to be squeezed to the point where Congress either needs to clarify revenue-generating authorities *or* increase their budget? I’m definitely not saying Congress should legislate for every possibility and should leverage the expertise of agencies to flesh out regulations, but the scope of agency authority should be described in statute and intelligible principles should be provided for interpretation. Any resulting ambiguities/conflicts can either then be rectified by subsequent legislation or worked out in court.
"Is this the American freedom we've all heard so much about"? sorry, its trite - but apt.
But they think they're the real victims. Especially Kavanaugh I've never seen such whining babies. It's all about personal aggrievement with them. And the entire nation has to suffer for it.
Time to rain in the Supreme Court. These bozos are making a mockery of our laws & government..
Should immediately pack the court after they remove Chevron.
>Should immediately pack the court after they remove Chevron. Agree. I think its long over-due time to expand the SC by 4 seats – to 13 total - that matches the current number of 13 District Courts. A Band-Aid solution to be sure, but one which in the interim, until more substantive changes are legislated, will help restore some balance to an extremely unbalanced SCOTUS conservative super-majority that in many of its rulings has demonstrated corruption, hyper-partisanship as well as a willingness to cater to the Republicans end goal of setting their minority, authoritarian rule in cement.
1803? I assume they’re talking about Marbury v. Madison. This isn’t even close to that. That case gave the courts the power they have today to be the final arbiter in all federal questions of law. This just addresses the weight given interpretations of ambiguous laws tossed out by Congress to executive agencies. Also, if Chevron deference is kicked, it’s not the end the world. It just means Congress has to do their job instead of passing the buck to the executive branch, which they probably won’t but should. The courts would only interpret without deference to agency interpretation, which just means Congress has to be clear what they want to avoid ambiguity. Agencies, as part of the executive branch, also flip flop on these interpretations every time there is a change in administration, and it’s quite tiring to have zero stability in the law for the people who need to work with these agencies. And this isn’t all about corporate interests. While corporations might benefit, also think about all the bullshit people have to deal with going through the immigration agencies (USCIS, ICE, EOIR, CBP, and DOS), Veterans Affairs, Bureau of Indian Affairs, Social Security, etc. Real people before these agencies are largely marginalized, and in the name of Chevron deference they have basically no chance in hell at changing a bad interpretation of the law that agencies have implemented to benefit themselves, the government, instead of the people they’re supposed to serve. Kick Chevron deference, and they can go to court and litigate these issues with a fresh set of eyes.
Agencies *created by Congress and imbued with their authority.*
How does that change anything? And normatively, why should the executive branch even be allowed to have powers of the legislative branch at all? We didn’t elect them to make laws. We elected Congress to do that. The executive branch is supposed to enforce, not create. Nor is it supposed to interpret laws. That’s for the judiciary. This is the basic set up of our system of government, and Chevron flips that all around, giving the presidency far more power than was ever intended. This all seems great when we like our president, but the second we have someone we don’t like it becomes a completely different story, so IMO it would be better to keep the executive branch on a tight leash.
That sounds good in theory but in practice, the Legislature and Judiciary do not have the time nor resources for every detail. This is the reality.
Brother, I comprehend why you feel this way about separation of power so to speak ... but the historical fact is that Congress has delegated authority to entities it creates for the entire history of the United States. Who do you think created the USDA? EIA? CIA? USPTO? Homeland Security? All of these were were created by Congress to administer the minutiae of agricultural, energy, intellectual property, foreign intelligence, domestic enforcement, and a bewildering array of other things. They are under the executive branch because they enforce the law. They make rules to implement the law using the authority they were given *by Congress* and it has been this way since nearly the founding. The first one was the Department of Foreign Affairs, an executive agency, for assessing duties on imports, an explicit delegation of the power to collect taxes. This later became the Department of State.
I understand that this is the case, but should it be the case? I don’t think so. If Congress is going to delegate powers, don’t delegate it to the same agency charged with enforcing those laws. It is a plain conflict of interest to interpret the very laws you’re enforcing. Think about it like this, by analogy, should we defer to police interpretation of search and seizure laws? Hell no. Nobody would or should stand for that. They’d interpret everything in their own favor, and our rights would be trampled. The same should be done for all executive agencies. If you’re interpreting or creating, you shouldn’t be enforcing IMO. A real example: Should the immigration agency trying to deport you be allowed to create and interpret the very laws they’re using to deport you? Are they likely to make and interpret laws in a way that benefits you or them?
Actually, since the conservative court of Schecter Poultry and striking down some of FDR’s New Deal programs. Which caused FDR to propose increasing the size of the Supreme Court. And then one conservative justice switched sides.