That's a pretty good summary of Chevron deference. Going after Chevron deference (which has was not previously viewed as having any ideological valence) and turning everything into a freedom of speech or religion issue, along with not doing anything about gerrymandering or abortion restrictions and killing unions, are some of the main lines of current conservative activism in the courts.

The important thing to know about Chevron deference is that it was invented out of whole cloth so that Regan's EPA could ignore the clean air act. Now that right wing loons have captured the judiciary they want to do away with it.

Fun fact I learned while looking it up on wiki, the original case was Chevron vs. Gorsuch - and yes, it's that Gorsuch, Neil's mom ran Reagan's EPA

I can't keep up...

Is allowing un-elected bureaucrats in executive branch agencies the right to make up regulation at their will (instead of remanding it back to Congress to actually do their job) a good thing or a bad thing?

https://www.washingtonpost.com/news/...=.72180760a634

I want to do the inverse of what the right wing loons have done. So keep it in place until the courts are packed with liberals and only then remove it.

But the Dems had their chance, and they squandered it. So at least the GOP is potentially taking the opportunity.

So "public policy" operates on multip different levels. At the highest levels are goals or aspirations: "all people should be free", "equality for all," etc. Think the Declaration of Independence. Common (or uncommon) broader goals and objectives can of course conflict with "rights," and rights are tricky things, and in most cases you end up weighing someone's "freedom" against the rights of others not to be imposed upon. But you get the point, and plenty of political discourse and debate takes place on this level (often because the lack of specifics and the generality of language allows for a lot of "slippage" in how language is deployed and the ticket to entry is fairly low).

At the next level are the sort of broad documents, like the Constitution, that set up the framework under which more specific policy objectives can be undertaken. Among other things the Constitution says, e.g., "To promote the progress of science and useful arts [goal/purpose], by securing for limited times to authors and inventors [general element] the exclusive right [general element] to their respective writings and discoveries [general eleemnt]." That is, the Constitution empowers Congress to create a law protecting patents and copyrights. This clause is there because, even though legal monopolies are "unnatural" and difficult to enforce (you need rules, and a legal and bureaucratic system), it was known by the 1780s that there are huge free-rider problems that disincentive investment in material progress if anyone can just copy anyone else's writings or inventions. However, while this clause is much more specific than "all men are born free", it's not going to get a patent or copyright system off the ground. For that you need laws.

The level of "laws" is Congresses stock and trade. The idea is that to effectuate desirable outcomes, Congress can pass various laws within the scope of its constitutional powers. Now, in a nation of 4m people with limited technology, where the fastest things move at like 30 mhp, law isn't that complex. It's complex enough where it involves specialists, but not 21st-century complex. So, e.g., you can have a simple 3-page long Patent Act passed in 1790, and the Secretary of State (i.e., Thomas Jefferson) can personally sign off on each granted patent. https://www.ipmall.info/sites/defaul...ct_of_1790.pdf

Now, laws are great and all, and Congress does have investigatory and research capabilities to aid in making good laws (hence the Library of Congress, etc.), and has "experts" who serve on specific committees, etc., but over the course of time it was found that many of the nitty gritty details of laws are not really within the purview of general legislators, and that executive branch (that branch that ensures that laws are enforced) entities were necessary to oversee and implement, often with specialized expertise, the laws. Congress wants railroads and canals, and may make laws encouraging or directly funding such things, but then there are considerations like overlapping rail lines, nonstandard rail gauges, too many rail lines going some places and not others, pollution, etc. So, the executive needs to form an entity, such as the Dept. of Commerce to oversee such things, often with experts. Now, laws are often quite general, so Congress has empowered executive agencies (by laws, such as the Administrative Procedures Act) with the ability to draft "regulations" that are much more specific than the laws it passes. So the law may say, an Agency can set the minimum amount of steel to be used in railroad tracks (or more like, "[Agency] may provide for regulations concerning the quality and safety of railroad rails and ties." And Congress can even require, "[Agency] must base its determinations on the input of qualified engineers."

So regulations, which can be found in the Code of Federal Regulations, are typically much more specific than laws, and there are certain requirements to how they are adopted and implemented, e.g., draft regulations have to be published and set for comment, hearings need to be held, etc. (this is much of what lawyer-lobbyists do). For example, the current version of the Patent Act, the "law" that Congress passed that covers patents is approximately 100 pages. https://www.uspto.gov/web/offices/pa...dated_laws.pdf The Patent Rules (aka regulations), enacted by the Dept. of Commerce, are approximately 500 pages, and each regulation must refer to the statutory section (i.e., law) that gives the rule the right to exist. https://www.uspto.gov/web/offices/pa...ated_rules.pdf

Here is an example of a patent regulation:

Again, statutes passed by Congress often impose limits on the form or substance of regulations enacted pursuant to those laws, which agencies are legally required to follow.

Often things are even less constrained and legislation will implement "compromises" that were required to get laws passed, to the effect that some laws say things like "[Agency] will promulgate regulations to ensure that pollution does not kill/harm too many people, taking into account the economic impact of the regulations." In implementing these laws, and the regulations adopted to implement them, agencies often wield significant power, though power constrained by the law, e.g., the requirement for economic analysis.

When private actors are upset by such regulations they can sue. Chevron deference basically says, "Unless the agency is acting manifestly irrationally or contrary to statute" the lawsuit loses. As much as anything else, this is so judges don't have to spend their time recreating or vetoing the subject matter expertise of agencies. So, Chevron Deference permits the regulatory state to exist without being unduly gummed by private actors or political winds, and exchanging the views of members of the judiciary for the subject matter experts in executive agencies threats to give the courts and private parties essentially a veto over the regulatory state and, in a sense, a veto over Congressional legislation. So, that is the issue, and what the conservative legal movement wants to do is push things back closer to how it was in the 1820s than the 2000s, which would effectively hobble the regulatory state. Without Chevron deference (or somethign very similar) you could potentially strangle much of the modern state.

Finally, for some completeness, below regulations are the things used to direct actual people to implement them, such as the Manual of Patent Examining Procedure, a 2000 page manual, based on the regulations (and the laws and court cases), that individual patent examiners use to evaluate individual patent applications. https://www.uspto.gov/web/offices/pac/mpep/index.html
This is a long way from "all men are equal", and rarely the subject of controversy (because only subject matter experts can debate them), but it's the difference between idly musing about flying a rocket into space and actually flying a rocket into space. Acquiring expertise about a topic is one thing that turns teenage libertarians into functional adults.

Finally, in brief, it should also be noted that "unwritten" culture or "know how" often directs how rules are implemented as much as the rules themselves. Think of the "unwritten rules" cops or prosecutors may follow. In a recent podcast, the liberal Philadelphia DA, Larry Krasner, who is reforming the office noted that "practice trumps policy every day."

So, to answer your question, the nature of reality is why agencies and not Congress draft and implement regulations and why Cheveron deference matters.

Simplicitus...

Take the example of immigration.

Should DHS/ICE be able to rewrite regulations at its whim?

Should the government be able to use Chevron as a defense when plaintiffs are petitioning the courts for releif in immigration cases?

DHS and ICE shouldn't exist

Yes, DHS/ICE should be able to rewrite regulations at its "whim", provided such rewritten regulations are 1) consistent with the Constitution and due process, 2) are consistent with legislation the regulations are designed to implement, 3) are consistent with duly enacted treaties, which have the force of law, and 4) are subject to the requirements of the Administrative Procedures Act (e.g., notice and comment period, etc.). Note that Chevron deference requires that the new regulations have a rational basis in terms of the laws they implement. The rational basis test is very loose, but regulations can't just be pulled out of thin air and must comply with the law.

I don't really understand the question. I don't think the issue in immigration cases is that actual codified regulations are not rationally related to the underlying immigration laws, where the DHS could claim they are entitled to Chevron deference. Rather, I beleive the issue is that Trump issued executive order(s), which are not regulations and are not entitled to Chevron deference, that are: 1) unconstitutional on their face, 2) inconsistent with treaty obligations, and 3) inconsistent with legal precedent and actual court orders specifying conditions under which people may be detained and or children separated from their patents.

That's a completely different area from where Chevon deference would apply. In fact, Trump seems to be basing his actions on 1) the inherent authority of the Executive (another thing conservative jurists love) and 2) prosecutorial discretion.

This is why Chevron deference is good, so judges like Kavanaugh can't substitute their views for those of agencies.


https://twitter.com/greenhousenyt/st...37244433387521

Chevron defense is the notion that the agencies get to decide what the law is. That the courts are happy to leave it up to the agencies to handle disputes.

My understanding is that Chevron is not routinely used in arguing immigration regulations issues.

I have read a little about it and it doesn't seem clear to me why this is.

I have not found that the issue is executive orders issued by the president.

What is stopping Congress from fixing the issue herein?

This is an interesting contrast to the tax world, where for a long time Treasury Regulations were assumed to have their own special status different from conventional regulations. AFAICT the basis for this was always that tax lawyers are smarter than regular lawyers and shouldn't be forced to read boring Supreme Court decisions about the APA when they have real work to do. It has since become crystal clear that Treasury Regulations are actually normal regulations and subject to both the APA and entitled to Chevron deference. What is interesting is that this is largely harmful to the government. While it's theoretically nice that Treasury Regulations are protected from challenge, Treasury has very broad statutory authority to draft most regulations, so challenges to the validity of a regulation were very hard anyways. Plus challenges would always be based on being contrary to statute anyways, so there isn't any kind of protected regulatory fact-finding that you need judicial deference to insulate from second-guessing.

The big however is that, due to the historical attitudes of Treasury and the tax bar, a lot of Treasury Regulations arguably have procedural defects under the APA. For example, it's completely standard practice for Treasury/IRS to identify a loophole or something that needs to be closed, and then to close it by simultaneously issuing a "temporary" regulation with immediate effect alongside a "proposed" regulation to fix the problem permanently after getting public comment (which is required for many regulations under the APA). The key distinction is that there is no notice-and-comment period prior to the effectiveness of the temporary regulation. And even though temporary regs are contemplated by statute, there is no explicit exception for them from the APA requirements, including the notice-and-comment requirement. Last year, there was a court decision that struck down a temporary regulation on this basis which, if read broadly, would mean that most temporary regulations on the books are invalid.

This is one of conservative jurists favorite canards. Congress barely functions as it is and the ole "Congress can pass a new law that fixes these issues?" is a judge saying "whomp, whomp" as he kills a law he doesn't like. Listen to the latest Weeds podcast for discussion, it's about 30 minutes in.

Interesting. There's also some funky law that automatically repeals regulations that don't meet some funky requirement, like an annual report to Congress that literally not a single person will read.

IANAL (but neither are you, and not that you seem to care about taking advice from one anyway) but...this seems wrong? Chevron deference doesn't mean "agencies decide what the law is", courts can still come back and say "while you have wide latitude to interpret the law, it clearly does not allow what you're currently doing" and strike something down.

The alternative is a dictator executive branch, which is one of the left's favorite canards of the current executive.

Re: Bolded
I know you guys in the 2+2 Politics Forum want to prevent discussion and all... but having a discussion doesn't mean that one is refusing to take advice from the other side.

Re: Underlined
The problem is, it actually does, though. There are current examples of how the Trump administration is modifying current agency regulations, outside of executive orders, which will be contested in the courts. The Agencies will certainly use Chevron to defend, and the courts will (effectively) recuse themselves. Leftist heads will implode -- as well they should.


~~~~~~~~~~~~~

Some interesting reading...

http://yalejreg.com/nc/chevron-s-imm...michael-kagan/

Separately, the above linked article making points similar to what simplicitus made upthread.

I don't see any problem (at the moment) with the technical expertise justification.

The political justification, as posed, does not sit well with me. Just because the president will face re-election in 4 years, doesn't mean that current poor policy actions by the agencies should go unchallenged by the courts simply because it passes some ethereal "reasonableness" test.

Yesterday’s weeds episode goes so hard againt Kavanaugh. I’ve never heard Yglesias go that hard against anyone.

This is utter nonsense. Chevron deference doesn't mean that agencies do whatever they want and courts say "we have no standing to challenge this". So much good information in this thread and you appear to have learned nothing from it, Trump might call that "SAD!".

Not quite as good as his "Actually, Paul Ryan is brave" rant from a few months ago. But still very good.

There are a number of deference doctrines where the courts have said that they will choose to defer to the agencies. Chevron, Skidmore, Auer. The deference is in essence, recusal from judicial oversight.

Whether these are good policy, and/or practice, is up for debate.

E.g...

https://www.theregreview.org/2017/11...ing-deference/

lol

As an interesting wrinkle to the Chevron issue, I’ve talked to a couple immigration attorneys who actually don’t like Chevron deference in the immigration context because those regulations supposedly lack the same type of technical/scientific backdrop that IP/environmental regulations have. I work in environmental law and a world without Chevron deference is a nightmare. You end up with something more like Florida has, I don’t have time rn but I’ll try and see if I can explain how administrative law operates in Florida as opposed to federal judicial system