The Supreme Court's recent jurisprudence expanding presidential control of the bureaucracy undermines one of the common critiques of judicial deference to executive branch interpretations of statutes
The thing that bugs me about the coverage of the Chevron Defense is how many people think the deference is absolute. "So long as the interpretation is reasonable" is the critical part. There are already lots of avenues for litigants to challenge administrative decisions in the courts, ALJs or even more. In fact, the fishing boat litigant seems to have done so: I understand the the fee he objected to has actually been dropped in his case.
The folks litigating "on behalf" of the fisherman are indeed doing no such thing. They are litigating on behalf of an agenda.
It's too much to hope that the Extremes should just modify the concept, to add better ways to challenge an administrative decision on existing reasons for challenge. If it isn't true already, awarding attorney fees to a prevailing litigant could allow greater access to using the existing exceptions to deference.
In other words, to freaking BALANCE the "unaccountable" agency's expertise with some further accountability in the courts, rather than let judges simple pontificate on issues of expertise they know nothing about.
Unitary Executive=King George, who never asks. He takes. Back in the early 80s, exiled Iranian President Abolhassan Banisadr routinely appeared on French network television, signed paperwork (earlier agreement) from the Carter Administration in hand, to inform us that George Bush (and earlier, Bill Casey) had furtively met with the ayatollahs (same hotel that Kissinger used, to disrupt the Vietnam peace talks) in order to convince them to delay release of the embassy hostages until after the election so that Carter would lose. The clerics were only too happy to agree, because they hated Jimmy Carter for feting the Shah (an American puppet) at WH state dinners. The hostages were released ten minutes after the conclusion of Reagan's inaugural address. In return, Gipper sold TOW and Hawk missiles (through Jerusalem, of all places) to the nation his own State Dept had listed as the primary sponsor of international terrorism. Never told Congress.
Thank you for this summary. I think the discussion of Chevron also should include the administrative burdens that would be brought into play should Chevron be overruled. I think someone has brought it up, maybe in oral arguments, but it doesn't seem to be getting enough discussion.
I appreciate the strictly "within the lines of the brief" and it is contradictory as you say, but looking at the broader picture of the past 15-20 years outside the court and in the real world, it makes perfect sense. Dems want to establish programs and regulate say pollution or banking through the administrative state of dedicated professionals and there's been a whole legal/political (yes, one in the same) movement to oppose that. Rs haven't really cared about flexing power that way, so beefing up executive control is a way to give certain Presidents more power while taking away power from others.
Thank you in particular for the backstory on Chevron. Very interesting about-face it seems. Talk about convoluted though. Glad you’re on the job unraveling it for us lay people.
I concur with Patricia Jaeger (below). Perhaps a brief could show, in depth, the degrees of mischief that would arise from the playing-out of just one possibility - - should both the reach and the oversight of a typical administrative action of an agency be thwarted.
What clause checks Legislative Power’s absolute sole vestiture, strengthened against just such executive encroachment by Necessary and Proper?
The farthest I can imagine stretching them:
Relevant committees’ oversight of the conduct of any legislative office attached to an executive or independent agency. This would include progress reports, meetings with those offices’ experts to brief them on pros and cons of competing potential policies/rules/regulations, and joint public hearings, followed by congressional passage or failure.
430 legislative offices is certainly a lot to oversee for a House frozen at 438, but that’s an argument from convenience where we created two artificial inconveniences in the 20th century.
Convenience argues for defrosting the House, already a critical issue as the population has tripled since 1929. 1500 by the Wyoming plan is the smallest the House should be today.
It should probably be larger, not just for effective representation but to effectively counter “management” of members by leaders of political parties. Their takeover of Congress’ rules and leadership is the other 20th century idea that made it the sluggish and dysfunctional institution it is today.
No, it wasn’t always so. Witness the War Powers Act, enforced for the same convenience and also, interestingly, at issue today. The Framers had just been through a war. Most had served in the field or governed it in Congress. They gave Congress sole power to declare war because the Invasion clause empowered states to defend themselves against invasion (by a power, of course; only racism will call civilians seeking a better life an “invasion”) while getting word to Congress or in Extraordinary Occasions to the president to call Congress into session while alerting the military and the other states. Today every state has at least one base with capacity to shoot down an incoming missile. The Invasion clause empowers their using it in the meantime.
When more than one current problem indicates failure of the same relatively recent changes we need to review and remove them.
The thing that bugs me about the coverage of the Chevron Defense is how many people think the deference is absolute. "So long as the interpretation is reasonable" is the critical part. There are already lots of avenues for litigants to challenge administrative decisions in the courts, ALJs or even more. In fact, the fishing boat litigant seems to have done so: I understand the the fee he objected to has actually been dropped in his case.
The folks litigating "on behalf" of the fisherman are indeed doing no such thing. They are litigating on behalf of an agenda.
It's too much to hope that the Extremes should just modify the concept, to add better ways to challenge an administrative decision on existing reasons for challenge. If it isn't true already, awarding attorney fees to a prevailing litigant could allow greater access to using the existing exceptions to deference.
In other words, to freaking BALANCE the "unaccountable" agency's expertise with some further accountability in the courts, rather than let judges simple pontificate on issues of expertise they know nothing about.
Unitary Executive=King George, who never asks. He takes. Back in the early 80s, exiled Iranian President Abolhassan Banisadr routinely appeared on French network television, signed paperwork (earlier agreement) from the Carter Administration in hand, to inform us that George Bush (and earlier, Bill Casey) had furtively met with the ayatollahs (same hotel that Kissinger used, to disrupt the Vietnam peace talks) in order to convince them to delay release of the embassy hostages until after the election so that Carter would lose. The clerics were only too happy to agree, because they hated Jimmy Carter for feting the Shah (an American puppet) at WH state dinners. The hostages were released ten minutes after the conclusion of Reagan's inaugural address. In return, Gipper sold TOW and Hawk missiles (through Jerusalem, of all places) to the nation his own State Dept had listed as the primary sponsor of international terrorism. Never told Congress.
Thank you for this summary. I think the discussion of Chevron also should include the administrative burdens that would be brought into play should Chevron be overruled. I think someone has brought it up, maybe in oral arguments, but it doesn't seem to be getting enough discussion.
I appreciate the strictly "within the lines of the brief" and it is contradictory as you say, but looking at the broader picture of the past 15-20 years outside the court and in the real world, it makes perfect sense. Dems want to establish programs and regulate say pollution or banking through the administrative state of dedicated professionals and there's been a whole legal/political (yes, one in the same) movement to oppose that. Rs haven't really cared about flexing power that way, so beefing up executive control is a way to give certain Presidents more power while taking away power from others.
Thank you in particular for the backstory on Chevron. Very interesting about-face it seems. Talk about convoluted though. Glad you’re on the job unraveling it for us lay people.
I concur with Patricia Jaeger (below). Perhaps a brief could show, in depth, the degrees of mischief that would arise from the playing-out of just one possibility - - should both the reach and the oversight of a typical administrative action of an agency be thwarted.
What clause checks Legislative Power’s absolute sole vestiture, strengthened against just such executive encroachment by Necessary and Proper?
The farthest I can imagine stretching them:
Relevant committees’ oversight of the conduct of any legislative office attached to an executive or independent agency. This would include progress reports, meetings with those offices’ experts to brief them on pros and cons of competing potential policies/rules/regulations, and joint public hearings, followed by congressional passage or failure.
430 legislative offices is certainly a lot to oversee for a House frozen at 438, but that’s an argument from convenience where we created two artificial inconveniences in the 20th century.
Convenience argues for defrosting the House, already a critical issue as the population has tripled since 1929. 1500 by the Wyoming plan is the smallest the House should be today.
It should probably be larger, not just for effective representation but to effectively counter “management” of members by leaders of political parties. Their takeover of Congress’ rules and leadership is the other 20th century idea that made it the sluggish and dysfunctional institution it is today.
No, it wasn’t always so. Witness the War Powers Act, enforced for the same convenience and also, interestingly, at issue today. The Framers had just been through a war. Most had served in the field or governed it in Congress. They gave Congress sole power to declare war because the Invasion clause empowered states to defend themselves against invasion (by a power, of course; only racism will call civilians seeking a better life an “invasion”) while getting word to Congress or in Extraordinary Occasions to the president to call Congress into session while alerting the military and the other states. Today every state has at least one base with capacity to shoot down an incoming missile. The Invasion clause empowers their using it in the meantime.
When more than one current problem indicates failure of the same relatively recent changes we need to review and remove them.
Statute may not contradict text in any case.
Law is a real thing.
Show me a clause.
Just saw the Extremes blocked the injunction against cutting the razor wire. Does this also include allowing access to that park?
Besides the very interesting background to the Chevron issue, I appreciated the background on appointing the AG.