Comment by ranger_danger

1 year ago

Why do you think there will be inconsistent rulings? Wouldn't any such case be accompanied by subject matter expert opinions and testimony?

18 comments

ranger_danger

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alistairSH  1 year ago

Judges aren't perfect and they aren't completely apolitical. If they were, we wouldn't need appeals courts and SCOTUS.

With Chevron in place, that imperfection was somewhat managed by deferring to the experts in the executive branch who were tasked with implementing the rules provided by Congress.

Without Chevron, a non-expert judge has to decide whose experts they believe.

Additionally, the removal of Chevron opens to doors to a massive number of cases that likely wouldn't be filed under Chevron. So, we're also adding caseload to an already overburdened justice system.

  • ranger_danger  1 year ago

    But experts aren't perfect either... I'm not sure how good of an argument this is if it just boils down to trusting a different set of experts and believing one is somehow inherently better than another? Or maybe I misunderstand.

    • alistairSH  1 year ago

      Fair question... with Chevron, the experts in the executive were just presumed to be acting in good faith, particularly in the face of vague legislation.

      The bar to overturning those executive rules is now potentially much lower.

      Take the ATF's bump stock ban (overturned prior to Chevron being killed, IIRC)... - Congress has effectively banned machine guns (for normal people to own) - ATF decides bump stocks make machine guns - Bump stock owner sues ATF, claiming they overreached - Courts initially upheld ATF rule (deferring to ATF experts) - Appeals courts overturned lower court ruling, claiming bump stocks don't meet the definition spelled out by Congress.

      As much as I hate it, the appeals court is technically correct. The law passed by Congress was narrowly tailored and bump stocks don't meet that rule.

      So, this was a case where Chevron was actually "worse" than "no-Chevron".

      But, it's easy enough to imagine the reverse. Congress says "hey EPA, make the air clean!" with little or no guidance on the mechanism they want followed. EPA does its best, but now gets sued by any big industry that wants to pollute. With Chevron in place, implementing that vague law is still possible. Without it, EPA does it's best and often ends up losing to the other side's experts (and very likely the various districts decide differently, leading to inconsistent application of the law across the country, until/unless SCOTUS takes a case).

      The simple answer is to require Congress to write detailed laws. But, that's not really possible (given the scope of the government). And exacerbated by the dysfunctional state of affairs we've seen in Congress these last few decades.

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    • wrs  1 year ago

      The whole point of having a regulatory agency is that you hire full-time experts in the field and rely on them to build a coherent and stable system of rules and enforcement. As one of the regulated parties, this gives you some solid ground to stand on.

      If this can all be second-guessed in court, then it becomes more of a crap shoot based on a series of judges’ rapport with the selected experts du jour, who are selected primarily based on the suitability of their opinion, rather than their expertise.

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