Comment by jmyeet

I want to talk about Chevron deference. Trust me, I'm going somewhere with this.

For those that don't know, Chevron deference was a legal doctrine established by the Supreme Court in the US in the 1980s that basically said that there is ambiguity in law, the courts need to defer to the agencies responsible for enforcing that law. Different agencies handled this differently. In some cases, they established their own courts. These aren't ARticle 3 courts in the Constitutional sense like Federal courts are but because of Chevron deference they had a lot of power.

There was a lot of good reason for this. Government is complex and Congress simply does not have the bandwidth to pass a law every time the EPA wants to, say, change the levels of allowed toxins in drinking water. Multiple that by the thousands of functions done by all these agencies. It simply doesn't work.

So for 40 years Congress under administrations of both parties continued to write law with Chevron deference in mind. Laws were passed where the EPA, for example, would be given a mandate to make the air or water "clean" or "safe" and that agency would then come up with standards for what that meant and enforce it.

Politically however, overturning Chevron has been a goal of the conservative movement for decades because, basically, it reduces profits. Companies want to be able to pollute into the rivers and the air without consequence. They don't like that some agency has the power to enforce things like this. The thinking went that if they overturned Chevron deference then it would give the power to any Federal court to issue a nationwide injunction against whatever agency action or rule they don't like. They standard for being to do that under Chevron was extremely high.

Defenders will argue that agencies are overstepping constitutional bounds and that vague statues aren't the answer. Congress must be clear. But they know that can't happen because of the complexity and that's the point. They don't want complexity. All those "legal" reasons are an excuse. Proftis are the reason.

Anyway, they succeeded and now agencies are governemend by what's called the Administrative Procedures Act ("APA") instead. Companies and the wealthy people who owned them celebrated this as a win but I don't think they understand what they've done.

You see, there are complex rules under the APA about the process by which an agency has to go through to make a rule or policy change and, from waht I can tell and what I've read online, most of them aren't doing it correctly or at all. They seem to operate under the belief that overturning Chevron means they can do whatever they want.

So the TSA is a government agency. If they want to add a fee like this well, you need to ask if that's a major rule change. If so, there are procedures for comment periods, review, etc. If these aren't strictly followed, you can simply go into court and say "the TSA didn't follwo procedure" and the courts can issue a nationwide injunction until the matter is resolved and if there was any technical violation of the APA policy change procedure, the entire thing can get thrown out.

So if anyone doesn't like what this administration is doing and wants to take legal action to block it, they should probably look to the APA and see if they can block it on technical grounds. I suspect this applies way more than people think and APA-based injunctions will only increase.