We Are Witnessing the Biggest Judicial Power Grab Since 1803
We Are Witnessing the Biggest Judicial Power Grab Since 1803
During a major hearing this week, the conservative justices made clear they’re about to gut the federal government’s power to regulate—and take that power for themselves.
During a major hearing this week, the conservative justices made clear they’re about to gut the federal government’s power to regulate—and take that power for themselves.
The Supreme Court heard two consolidated cases yesterday that could reshape the legal landscape and, with them, the country. The cases take on Chevron deference—the idea that courts should defer to executive agencies when applying regulations passed by Congress. They’re the most important cases about democracy on the court’s docket this year, and I say that knowing full well that the court is also set to decide whether a raving, orange criminal can run again for president, and whether former presidents are immune from prosecution for their crimes in the first place.
That’s because what conservatives on the court are quietly trying to do is pull off the biggest judicial power grab since 1803, when it elevated itself to be the final arbiter of the Constitution in Marbury v. Madison. They’re trying to place their unelected, unaccountable policy preferences ahead of the laws made by the elected members of Congress or rules instituted by the president. If conservatives get their way, elections won’t really matter, because courts will be able to limit the scope of congressional regulation and the ability of presidents to enforce those regulations effectively. And the dumbest justice of all, alleged attempted rapist Brett Kavanaugh, basically said so during oral arguments.
I’m contractually obligated to tell you that the cases were technically about fees that fisheries are required to pay to federal observers. But all the justices talked about was Chevron deference. Only Justice Sonia Sotomayor even bothered to mention the fish, three hours and 20 minutes into a three-and-a-half-hour hearing.
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Chevron deference is not used by government agencies to add rules to close loopholes to keep corporations in line. It is a vulnerability of executive agencies for corporations to exploit. Yall ever hear of revolving door or regulatory capture? Chevron deference is only good for Chevron.
A sweeping congressional inquiry into the development and certification of Boeing's troubled 737 Max airplane finds damning evidence of failures at both Boeing and the Federal Aviation Administration that "played instrumental and causative roles" in two fatal crashes that killed a total of 346 people.
The House Transportation Committee released an investigative report produced by Democratic staff on Wednesday morning. It documents what it says is "a disturbing pattern of technical miscalculations and troubling management misjudgments" by Boeing, combined with "numerous oversight lapses and accountability gaps by the FAA."
"The Max crashes were not the result of a singular failure, technical mistake, or mismanaged event," the committee report says. Instead, "they were the horrific culmination of a series of faulty technical assumptions by Boeing's engineers, a lack of transparency on the part of Boeing's management, and grossly insufficient oversight by the FAA."But their decision won't fix that. It'll just make it way worse.
What pre-Chevron rulings demonstrate a court that not deferring to an agency's interpretation of the law is a problem?
"There's no legislation to describe this exact situation. So no enforcement is possible until a judgement is made to decide what needs enforcement." If there's any give, the historically glacial judicial system must make a decision. Allowing companies to stomp all over everything, with little to no oversight. The only way to stop them is to sue and get a judge to decide. A process that traditionally favors the wealthy and well connected. And it allows for obvious transgressions to go until it rises to the ability to legislate against.
It's a decision decided to rob the legislation of any leway to the executive. It's blatant theft of the legislature's ability to delegate. Things change quickly and those entrusted to actually do the work of enforcement do need give, but with proper oversight and transparency.
“There’s no legislation to describe this exact situation. So no enforcement is possible until a judgement is made to decide what needs enforcement.”
Yeah, law enforcement shouldn't be able to throw people in jail (or perform other punitive actions) for things that are not prohibited by law. The law should be applied equally, with a minimum amount of discretion permitted. You only have to look at drug laws to see what happens when law enforcement has latitude and exercises discretion about the manner in which the law should be enforced.
If there’s any give, the historically glacial judicial system must make a decision. Allowing companies to stomp all over everything, with little to no oversight.
When executive agencies are permitted to decide how strictly a law or regulation must be enforced, they rarely choose to enforce it more strictly. Any time something bad happens, you can usually see that it was a direct result of loosening enforcement of some regulation. This shit happens over and over and over again.
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It’s a decision decided to rob the legislation of any leway to the executive.
The Chevron case was ruled on in 1984. Did the executive branch have zero leeway prior to 1984? No.
Okay. When you're done talking past me in an attempt to make your point, I want you to think about the current SCOTUS, what their decisions might look like coming out of this, and that the executive branch isn't "cops".
They're not going to fix the issues that Chevron introduced, they're going to nuke the idea that something can be included in legislation if it isn't explicitly stated. Meaning questions that the Legislation left open for the Executive to answer as it comes up, with Judicial oversight if the Executive exceeds its established authority, will be replaced with only the Judicial branch gets to interpret laws. At that point, any open ended questions left by Legislation can only be decided by the Judicial branch.
This kills the EPA, the FCC, literally any decision making body within the Executive and replaces it with the incredibly slow Judicial system that benefits the wealthy EVEN HARDER than Chevron.
No law that applies exactly to whatever you're doing? There's no law then and you can do whatever you want until someone has standing to sue you about it or a new law is passed. EPA wants to limit a new type of pollution? That wasn't specifically called out as a pollutant in the NEPA, guess you can't regulate it until the Legislature adds a clause to allow you to regulate that specific new pollutant. FCC wants to set rules for ISPs? Internet wasn't a thing in 1934 when they established the FCC, guess you can't regulate them. Or Broadcast TV.
Dude, this is going to be a nuke to America's already hilariously bad guardrails.
I want you to think about the current SCOTUS, what their decisions might look like coming out of this, and that the executive branch isn’t “cops”.
The Department of Homeland Security, Federal Bureau of Investigation, United States Marshals Service, Bureau of Alcohol, Tobacco, Firearms, and Explosive, Drug Enforcement Administration, United States Customs and Border Protection, National Security Agency, Immigration and Customs Enforcement, and Department of Justice are cops. There is a Medicare Fraud Strike Force. They don't walk a beat, but they are cops.
they’re going to nuke the idea that something can be included in legislation if it isn’t explicitly stated
They will not.
This kills the EPA, the FCC, literally any decision making body within the Executive and replaces it with the incredibly slow Judicial system that benefits the wealthy EVEN HARDER than Chevron.
Won't happen.
That wasn’t specifically called out as a pollutant in the NEPA, guess you can’t regulate it until the Legislature adds a clause to allow you to regulate that specific new pollutant.
You think it's going to be legal to kill Clarence Thomas because there is not a law that specifically prohibits killing Clarence Thomas? I doubt it.