Bad Facts for Chevron

Make Congress Great Again.

By and
79

Sarah and David appease a couple listeners’ requests before getting to the Loper Bright Enterprises v. Raimondo oral argument.

The Agenda:
—Words of the day: certiorari and conversion
—Epic Games, Inc. v. Apple Inc.
—Supreme Court humor
—Congress (and the courts) do your job
—Texas’ READER Act blocked by Fifth Circuit
—Responding to listeners’ comments

Show Notes:
—Kisor v. Wilkie
—Pierson v. Post

By and
Comments (79)
Join The Dispatch to participate in the comments.
 
  1. Avatar photo
    PaulH

    I think David has invented what might be called the "minor questions" doctrine. Basically, he is arguing that when an agency tries to interpret a statute to give itself powers that Congress didn't actually give it, the courts should push back. That seems like a reasonable canon of interpretation -- though in many instances (such as the fishermen's case at issue) it seems like you could get the same result by a vigorous application of the requirement that a statute must be ambiguous to be subject to Chevron deference (i.e. if the statute doesn't grant the agency the power, it doesn't have it).

    Collapse
  2. AndrewC

    I laughed when Sarah asked which animal, because I actually knew the answer. I hail from the medical world but I still clearly remember coming home from school to my roommate resting his hands in his face and asking him why, to which he responded, “I’m writing about a fox hunting case from the 1800s.” When I informed him that I spent my day learning about the ins and outs of STDs he decided he had indeed not chosen the wrong career path as he had briefly contemplated.

    Collapse
    1. CCA

      The lecture we got spent about 52 seconds on what happened in that case and then the remainder of the hour or so on what the professor said the case was really about.... class and wealth disparity in America. I trailed off somewhere in the 32nd minute....

      Collapse
  3. Mahess1998

    As a teacher, it really bothers me when the hosts talk about sequences that happened in the past using the verb form “going to.” Justice Scalia is not “going to write” anything in 2005. Besides being in the wrong tense, it can be genuinely confusing to know whether you are describing a sequence of events in the past or actually predicting one in the future.
    Minor, but thought I’d mention it.

    Collapse
  4. Avatar photo
    Denise Cote

    Hayley Paige changed her name because the court previously ruled that JLM had exclusive rights to it. That name was what sold a bunch of wedding dresses.

    Collapse
  5. Cody Murphy

    Why must those Experts only work for the Agencies? Why cant Congress have Scientists to help draft policies and ALJS shuttled over into Magistrates Judges for their technical expertise. It seems to me that Article I and III could do with some bulking up and taking the plate off of the President.

    Collapse
    1. Avatar photo
      George.Skinner

      Congress has already got the Congressional Budget Office with a lot of that expertise. They can also draw on a galaxy of think tanks to provide them with opinions. The big challenge for non-experts is usually assessing the credibility and accuracy of people who claim to be experts, though. Politicians have tended to fall for a lot of quacks and cranks when the message seems to align with their political preferences.

      Collapse
      1. Cody Murphy

        Oh for sure. But the price of Congress is minuscule compared to Article II could do with some more resources to hold their own. Every committee should have its own full time staff of subject expertise.

        Collapse
  6. Avatar photo
    PSM

    I find the question of "How could Congress possibly regulate these technically intricate areas?" to have a fairly simple answer: actually legislate responsibly. They could hold hearings with experts to actually learn things, and then draft relevant legislation.

    Someone has to set the rules/regulations. In our system, that's Congress. If they are unwilling to do the legwork, then they don't get to have that area be regulated.

    Yes, it means they need to actually be responsible for more than 5 minutes per year. You know who doesn't have the option of not caring about the details of regulations? The people and companies being regulated. Yes, it means that hearings would need to actually involve HEARING the witness and could no longer be show trials in the court of public opinion. That sounds good to me!

    Collapse
  7. GLW

    A correction/clarification: the READER Act applies to book vendors, not publishers. So it includes even small independent bookshops who have ever sold a book to a public school.

    Collapse
  8. E

    Is it too late to get on the AO matchmaking train? I'm a man in northeast Ohio and dating apps are horrible. I'm gregarious enough to be willing to take a whack at this in the first place, but not suave enough to know how to not seem like a complete doofus at it. 😕 Points for honesty/vulnerabilty? 🤷‍♂️

    Collapse
  9. Avatar photo
    NashLives

    The idea that the FDA is a good example of why we need deference to expert agencies literally made me laugh out loud.

    Collapse
    1. Avatar photo
      Ceich62

      Two words: Regulatory Capture

      Collapse
  10. Echack

    On the READER law in Texas. I expect that most of those that voted for it in the Texas Legislature knew full well that it would be struck down in the courts on constitutional grounds. But, it was a serving of red meat for their base. The legislature has a history of doing this, particularly in the Trump era, though it was a bipartisan affliction for years before that.

    Collapse
Load More