Tangle - SCOTUS hears Chevron doctrine argument.

Episode Date: January 23, 2024

The Chevron doctrine. On Wednesday, the Supreme Court heard arguments in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, two challenges to the so-called Chevron doctrine (or Chevron deference). The conservative-leaning court seems poised to limit or strike Chevron deference down, reversing 40 years of judicial precedent that was once championed by conservative icon and former Supreme Court Justice Antonin Scalia.You can read today's podcast ⁠⁠here⁠⁠, our “Under the Radar” story here, and today’s “Have a nice day” story here.You can also check out our latest YouTube video about misinformation and fake news that has spread like wildfire in the three months since Hamas’s attack on Israel and the subsequent fighting in Gaza here.Today’s clickables: A few notes (0:44), Quick hits (2:58), Today’s story (5:34), Right’s take (10:05), Interview with Jacob Sullum (13:09), Left’s take (26:50), Interview with Thomas Wolf (30:01), Isaac’s take (40:09), Listener question (44:48), Under the Radar (48:05), Numbers (49:01), Have a nice day (50:03)You can subscribe to Tangle by clicking here or drop something in our tip jar by clicking here. Are you a student interested in journalism, politics, and media? Know someone who is? We’ve opened applications for Tangle’s college ambassador program and are looking for engaged, enthusiastic college students to represent Tangle on their campuses. Applications will be open from January 23-February 4, and the program will run through the spring semester. If you or someone you know is interested, we are accepting applications here.Email Will Kaback at [e-mail] with any questions!Take the poll. How do you think the Supreme Court should rule on Chevron deference? Let us know!Our podcast is written by Isaac Saul and edited and engineered by Jon Lall. Music for the podcast was produced by Diet 75. Our newsletter is edited by Managing Editor Ari Weitzman, Will Kaback, Bailey Saul, Sean Brady, and produced in conjunction with Tangle’s social media manager Magdalena Bokowa, who also created our logo.--- Send in a voice message: https://podcasters.spotify.com/pod/show/tanglenews/message Hosted on Acast. See acast.com/privacy for more information.

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From executive producer Isaac Saul, this is Tangle. Good morning, good afternoon, and good evening, and welcome to the Tangle podcast, the place where you get views from across the political spectrum, some independent thinking, and a little bit of my take. I'm your host, Isaac Saul, and on today's episode, we're going to be talking about the Chevron and the oral arguments around a case that went before the Supreme Court last week, arguing to strike the Chevron doctrine down. And today we're also going to be doing something new, something a little fresh as part of our revamp of the podcast here in 2024. We're actually going to have some interludes here in today's episode where we bring on the authors of some of the pieces we're citing. So

you are going to hear directly from two people whose writing was cited in the newsletter and the podcast. And we're going to drop in some brief 10-minute interviews with them about their pieces. So the podcast will be a little bit longer than normal, but I also think a lot more interesting. It won't just be me reading everything off to you. And you'll get to hear from some of the people making these arguments live and in real time. We spoke with one this morning and the other yesterday afternoon. So it is Tuesday, January 23rd. And before we jump in with our quick hits, I also want to give a quick heads up that if you are a college student interested in journalism, politics, and media, or you know someone who is, we've just

opened applications for Tangle's College Ambassador Program, and we are seeking out engaged, enthusiastic students to represent Tangle on their campus. Tangle's College Ambassadors help boost the visibility of our work among their fellow students through a variety of on-campus activities and events, and coordinate outreach efforts with students at other schools. Ambassadors are paid and they're expected to commit about four to ten hours per week to the position during the semester. Our applications are going to be open for this from January 23rd to February 4th and the program will run through the spring semester. If you or someone you know is interested, we are accepting applications.

There is a link to the application in today's episode description and also in today's newsletter. And if you have any questions about this, please do not email me. Don't email Isaac. Email will, W-I-L-L at readtangle.com with any questions. He is the one running point on this for us. All right, with that out of the way, let's jump in with some quick hits. First up, the New Hampshire primaries take place tonight. On the Republican side, former President Donald Trump is now in a head-to-head matchup with former South Carolina Governor Nikki Haley. On the Democratic side, former President Donald Trump is now in a head-to-head matchup with former South Carolina Governor Nikki Haley. On the Democratic side, President Joe Biden is expected to win in New Hampshire via write-in votes because he is not on New Hampshire's primary ballot after the Democratic National Committee designated South Carolina as the first primary state. New Hampshire had for a long time been the first primary state, and in an act of objection to this

move, are holding their primaries first anyway. Biden faces a handful of challengers, including Representative Dean Phillips, who we had on the podcast and YouTube channel a couple months ago. Number two, Israel has proposed a deal to Hamas that would include a two-month pause in fighting in exchange for all hostages being held in Gaza to be released. Separately, Israel said 24 of its soldiers were killed in a single day, including 21 who were killed in an explosion. It is the highest single-day death toll for the IDF in the latest conflict. Number three, the Supreme Court granted the Biden administration's request to remove razor wire that was erected on the U.S.-Mexico border by Texas law enforcement. Number four, North Dakota Governor

Doug Burgum, who recently dropped out of the 2024 presidential race, said he won't seek a third term. And number five, members of the California Faculty Association that represents 29,000 faculty members across 23 campuses in the California State University system began a five-day strike over their pay yesterday. Supreme Court heard arguments Wednesday in two cases that question a decades-old legal doctrine known as Chevron deference. It means when a federal agency wants to do something, judges must defer to the wisdom of the agency unless the action is totally unreasonable. This comes up in instances where the law from Congress giving the agency authority is fuzzy or open-ended. is fuzzy or open-ended. The Chevron deference is a 40-year-old precedent where federal judges grant federal agencies latitude on how to interpret legislative statutes. Judges are supposed to

follow a two-part process. One, examine the congressional language, and if the intent is clear, the matter is settled. But two, if the language is ambiguous, then the ruling court must defer to that agency on how the law should be implemented. On Wednesday, the Supreme Court heard arguments in Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce, two challenges to the so-called Chevron Doctrine or Chevron Deference. The conservative-leaning court seems poised to the so-called Chevron Doctrine or Chevron Deference. The conservative-leaning court seems poised to limit or strike Chevron Deference down, reversing 40 years of judicial precedent that was once championed by conservative icon and former Supreme Court

Justice Antonin Scalia. A quick reminder, Chevron Deference was born out of the 1984 case Chevron v. Natural Resources Defense Council. In its decision, the court gave deference was born out of the 1984 case Chevron v. Natural Resources Defense Council. In its decision, the court gave deference to agencies under President Ronald Reagan's administration to reasonably interpret statutory texts that allowed those agencies to more easily withstand legal challenges from environmentalists. The resulting precedent directs courts to defer to a federal agency's interpretations of statutory language when Congress has left the law ambiguous. Now, many conservatives are arguing that the doctrine grants too much power to federal

agencies, and conservative legal groups are arguing that federal judges should have more power to strike down regulations that are not narrowly defined. We covered Loper Bright Enterprises v. Raimondo last year, when the court first agreed to hear the case. At the time, Justice Katonji Brown Jackson had recused herself because she had heard arguments in the case while a judge on the D.C. Circuit. The court then added Relentless Inc. v. Department of Commerce to the docket, a second challenge to the same set of rules, bringing Jackson back into the fold. Both cases were heard last Wednesday before the full court.

The challenges involve a rule issued by the National Marine Fisheries Service, the NMFS, that requires members of the herring industry to cover the costs of taking government-mandated observers on their fishing boats. Those observers monitor compliance with fishery management laws and can cost as much as $700 per day, though the fishermen were eventually refunded. The fishing companies challenged the rule, asking the Supreme Court to both weigh in on the rule and to overturn Chevron more broadly. Arguing for one of the fishing companies, attorney Roman Martinez made the case that Chevron deference undermines the court's duty to interpret law, noting that even if all nine justices believed the fishing companies had a stronger interpretation than NMFS, the court would still be required to defer to the agency's rule if they considered it, quote, reasonable. U.S. Solicitor General Elizabeth Prelogar asked the court to

keep Chevron in place, arguing it has tradition in the court's jurisprudence. She cited stare decisis, the court's position of generally adhering to precedent absent of truly extraordinary justification, something she argued was not present here. All three liberal justices suggested keeping the doctrine in place, mostly arguing that agencies with subject matter expertise were best positioned to interpret ambiguous laws. However, each of the conservative justices seemed skeptical of the doctrine, arguing variously that the status quo of Chevron ushers in new shocks to the system every time administrations change, that it consistently works against less powerful individuals who are overmatched by federal agencies, and that the impact of removing Chevron would be relatively minimal

as the court has not needed to rely on it in its jurisprudence in several years. Today, we'll examine some arguments from the left and the right about the oral arguments in this case, and what overturning Chevron would mean, then my take. We'll be right back after this quick commercial break. Are you looking to unlock new meaning in your life in under five minutes a week? We'll be right back after this quick commercial break. all leaving an authentic impact on the world. It's one of our favorite sources for innovative perspectives on the world's most pressing issues with personal reflections that deliver actionable insights to help you forge a lasting legacy. Sent every Tuesday and Friday, Profit Plus provides its 10,000 plus subscribers

a deep dive beyond the surface of everyday interactions. A few of our favorite issues include 10 simple practices for enlightened living, the four duties of a modern citizen, 10 Simple Practices for Enlightened Living, The Four Duties of a Modern Citizen, What Lincoln Can Teach Us About Cancel Culture, and Litany Against Cynicism. You can meet your future potential with a little help from Profit Plus, and you can check out the newsletter with a link in today's episode description. First up, we'll start with what the right is saying. The right hopes the Supreme Court will overturn Chevron to better balance power between the branches of government. Some celebrate the potential end of Chevron as a victory over the administrative state. Others say the cases before

the court are not about helping big business skirt the law, but about protecting normal Americans from executive agency overreach. In the New York Times, David French said overturning Chevron can help rebalance the constitutional order. The justification for Chevron deference is compelling, at least on the surface. Agencies regulate some of the most complex businesses and industries in the United States. They possess a level of expertise that's clearly beyond the capabilities of Congress. Why not defer to their determinations? Isn't that simply wise? French asks. But what might be wise in specific, highly technical circumstances can be very problematic when adopted as a general rule, as the Chevron doctrine has been. Chevron disrupted the constitutional order by effectively

giving the president the power to make, interpret, and enforce laws acting solely through his administrative agencies. This is not the way the United States was intended to function. It magnifies the power of the president beyond recognition, diminishes democracy, raises the stakes of presidential elections to destabilizing levels, and puts immense pressure on the president to maximize his rulemaking authority. Just as bad, it encourages congressional inaction and incompetence, French wrote. Reversing Chevron wouldn't end executive rulemaking, nor would it block Congress from explicitly granting agencies a degree of discretion based on agency expertise. It would instead roll back the president's extraordinary dominance. In The American Spectator, Jed Babin argued that SCOTUS can help drain the

swamp by overturning Chevron. The Chevron decision was a fundamental mistake that has burdened the American economy with far too many restrictive regulations, Babin said. The problem is that Congress, being as lazy and indecisive as it is, leaves too many laws vague and gives far too much discretion, real power, to the agencies to make up implementing rules. When it does so, it delegates what should be its exclusive powers to regulatory agencies in violation of the separation of powers principle. What is Congress's responsibility, it cannot and should not, though it often does, abdicate in favor of executive agencies. Overturning Chevron would have an enormously

beneficial result. Courts would have to look behind an agency's interpretation of the law to decide whether the law in question actually gave the agency the power to issue the regulation in question. If that happens in the Fisherman's case, the result would be devastating to the bureaucracy, Babin wrote. The major questions doctrine does not go far enough. It's time for SCOTUS to overrule Chevron and hold regulatory agencies to much tougher standards. In Reason magazine, Jacob Solem criticized the excessive judicial deference enabled by Chevron. And rather than summarize Jacob's position in that piece, I brought him in on the show to talk a little bit about what he thought about this case.

Jacob Sullen, thank you so much for being on the show. I appreciate it. Sure. Thanks for having me. So our listeners have a little bit of background here about the outline of this case, but I'm wondering if you could maybe start by just giving us a rough sort of two-minute version of your argument, your position on what the court should do here. Well, the case raises, or the two cases, raise three basic issues. One is separation of powers.

So one question is whether Chevron, the Chevron Doctrine allows administrative agencies to take on a legislative function by essentially writing or rewriting the law, something Congress is supposed to do. And another question is whether they're taking on, improperly taking on a judicial function by interpreting the law when it is deemed to be ambiguous, which is usually thought of as something that judges do. So that's the separation of powers concern in a nutshell. But then you also

have a related rule of law concern, which is to say that if Congress has not actually given an agency a certain authority, in this case, the authority to force herring fishermen to help pay for the observers that they carry on board who are supposed to monitor their compliance with fishery regulations. If that's not in the statute, can a federal agency say we're going to do that anyway? And obviously that goes to many other issues where Congress either has spoken ambiguously or not at all on a certain point. And the executive agency says, we're going to do this because we think it's consistent with what Congress probably intended, even though it doesn't actually say that in the law. And then the third issue that the plaintiffs

in these cases raise has to do with due process, which comes up because here they are as supplicants before this agency that's regulating them and saying, we object to this fee. This costs us about 20% of our income over the course of a year. And this is a big burden on us, but we don't see where this is authorized. So instead of being able to go right to the courts and make that case, they have to go through the agency first. of being able to go right to the courts and make that case, they have to go through the agency first. And the agency in that case is serving both as one side in the dispute, but also as the judge in that dispute. So that's a sort of due process concern that they don't get a neutral adjudicator,

at least initially. They have to go through the administrative process. And then lots of federal agencies have their own administrative law judges who are sort of like judges in the sense that they're hearing disputes between two parties, but they also work for one of the parties to that dispute. the most compelling argument for me, or at least the one that stood out that we heard a lot from the liberal justices yesterday, was that we're going to end up with courts ruling on laws or policies that are really kind of far outside of their expertise. And one of the benefits of this deference or Chevron doctrine is that these agencies have people inside them with specific expertise to determine, you know, what level of nitrogen should be emitted in certain factories or something like that. So I'm curious whether, I guess, A, you think that's something that should be weighed here in this case, and B, maybe just how you think about it in the context of what the court should do.

you think about it in the context of what the court should do? Well, I think there certainly are cases where expertise is important in determining technical matters. I don't think that is relevant in these particular cases because the question is, you have a statute that says that these boats have to carry observers, and you have a few specific contexts in which the statute authorizes collecting fees to help pay for those observers. The herring fishermen in New England waters are not covered by any of those categories. That, to me, is not a technical issue. That's an issue of statutory interpretation. Does the statute actually authorize the collection of these fees? And similarly, in the original case in Chevron, the issue had to do with air pollution controls and whether they, I think the language used in

the statute was source of emissions. And the question was whether the source meant, say, an entire power plant, or did it mean each individual source of emissions within that power plant? And actually, in that case, the decision was favorable to the industry because it gave them more flexibility in complying with regulations. So these cases don't necessarily always come down against a big business. In that case, it was favorable to big businesses. But in that case, it's not really a very technical issue that requires expertise in chemistry or whatever to determine what Congress intended. a situation where courts can bring the usual tools of statutory interpretation to bear and trying to fulfill what Congress intends or what Congress said in the statute. I'm certainly skeptical of any judicial precedent that creates a situation like we have now in this

case where these kind of small family-owned businesses are paying the cost and shouldering the burden of having these monitors on their boats. I mean, I think on the face of it, it seems totally absurd to me, especially given that it's not something that's explicitly called for in the legislation under question. I'm curious as to, broadly speaking, about the Chevron Doctrine, how you might explain or view the kind of an icon to many members in the majority on this court. And this has caused all sorts of kind of accusations of hypocrisy of the conservative justices. How do we think about this change in judicial thought? Is this a change in thought, or are these just such separate, disparate cases that there really are just so many underlying differences in the facts that it's a different question at hand. that I also try to make in my column is that this sort of ground rule does not just disadvantage,

you know, big companies, big companies that maybe could afford to pay regulatory costs, unlike these herring fishermen who are, as you noted, they're small family-owned businesses. It disadvantages individuals who have to deal with federal agencies and have basically no political influence, no ability to shape the process, to try to shape the rules that apply to them. And one example that Gorsuch encountered when he was a judge on the 10th Circuit was a case involving an immigrant who was basically fighting deportation, fighting for the right to stay in the country. And he was subject to a rule that had been reversed. It had been, the 10th Circuit had ruled one way, and then the INS had made a different decision

saying the law meant something exactly the opposite. and he still was subject to that rule. So that's, you know, the one case where you have an individual who is really at a disadvantage in confronting this government agency that doesn't really care about what happens to him or what his objections might be to the rule that he has to deal with. Another example that came up in a case the Supreme Court declined to hear involved a veteran who is partially disabled. He was owed disability benefits from the Department of Veterans Affairs. And there's a rule that says if you go into active duty, then those payments are suspended,

but then they're supposed to resume after you're no longer in active duty. And the department came up with a rule that said, yeah, but that's only going to happen if you tell us, if you specifically remind us that you're off of active duty now, then we'll resume your payments, but otherwise not. They made that up. It's not in the statute, and it seems to contradict Congress's intent, which is that people get the, these veterans get the disability benefits. And the upshot of this all was that although he ultimately did, you know, alert them under the rules the department had unilaterally imposed, he lost about three years worth of disability payments. And so you have cases like that a lot of the time where you're not talking about big businesses

who have lots of resources. You're talking about individuals who get screwed over by these government agencies that they're really not well positioned to fight with. And so I think Gorsuch has made that point repeatedly that you have to think about cases like that when you consider the Chevron doctrine, as well as the cases involving these large corporations. All right, Jacob, before I let you go, I'm curious for a little prognostication here. Based on the oral arguments we got, what do you think is going to happen? I mean, it seems pretty clear to me the doctrine is going to be limited or jettisoned completely.

the doctrine is going to be limited or jettisoned completely. I'm curious how you think the court's going to land here and what you predict might be the outcome of this case. Well, the Supreme Court itself really has not made much use of the Chevron doctrine in recent years. And they have, for the past decade or so, have not actually cited Chevron as the crucial reason for upholding any particular policy or decision. And they have used, to some extent, the major questions doctrine to limit the amount of authority that administrative agencies have by saying, by assuming that Congress, if it's going to create or authorize a regulation that has a big impact, that it would do so explicitly. And it wouldn't be something you'd have to infer. But the lower courts, meanwhile, still have to deal with this doctrine that tells them to defer whenever the statute is ambiguous. If the agency's interpretation is reasonable,

you're supposed to defer to that. And you get widely varying results depending upon the dispositions of the particular judges. Some judges never find statutes they deem to be ambiguous, so they never get to the second step of deferring to the agency's interpretation. Other judges very frequently deem statutes to be ambiguous. So I think you will see less of that. You will see less of that sort of variation and less deference in the lower courts to these decisions by administrative agencies. And I offer, by the way, one other example, because this was recently in the news, in case progressives think that this

Chevron doctrine only has good results, only results that they like, the Department of Health and Human Services recently reversed its position on the proper classification of marijuana in federal law. For many years, the DEA, the Drug Enforcement Administration, resisted rescheduling marijuana and insisted upon what was really a very implausible reading of the statute that required basically that a drug be backed by enough evidence to win FDA approval as a medicine in order to be removed from Schedule 1. HHS did a turnaround and said, no, we're not going to apply that standard anymore.

Here's the rule we're going to apply. We're going to, among other things, they took account of the fact that marijuana is authorized for medical use in 38 states now. They looked at the research backing up its medical value, even if it's not conclusive enough to pass FDA review, they're still going to consider it. So that was a huge reversal. And this is something that progressives had been demanding for many years. And the reason the DA was able to get away with keeping marijuana in Schedule 1 was because of Chevron deference. The statute was deemed ambiguous, and they were allowed to interpret it as they chose, which just so happened to be in the most restrictive way. So the actual

consequences in terms of whether they're appealing to people on the left or people on the right are not predictable. The main thing that you know is that this is a doctrine that empowers the government against the individual, and it empowers administrative agencies to basically enforce their will, rewriting the law to invent their own authority. And so I think that's something that should be troubling to people across the political spectrum. Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web,

his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+. The flu remains a serious disease. Last season, over 102,000 influenza cases have been reported across Canada, which is nearly double the historic average of 52,000 influenza cases have been reported across Canada, which is nearly double the historic average of 52,000 cases. What can you do this flu season? Talk to your pharmacist or doctor about getting a flu shot. Consider FluCellVax Quad and help protect yourself from the flu. It's the first cell-based flu vaccine authorized in Canada for ages six months and older, and it may be available for free in your province. Side effects and allergic reactions can occur,

and 100% protection is not guaranteed. Learn more at flucellvax.ca. Jacob Solem, you can find his work on Reason.com. Jacob, thank you so much for coming on. I appreciate it. Sure. Thank you. All right, that is it for what the right is saying, which brings us to what the left is saying. The left concedes that Chevron is likely to be overturned, but thinks conservatives may be overlooking the ramifications of such a decision. Some describe the court's likely ruling as a blatant power grab for Republicans. Others say the cases challenging Chevron are grounded in an inaccurate reading of history. The Washington Post editorial board suggested conservatives might regret the end of

Chevron. Initially praised by Justice Antonin Scalia, Chevron was a unanimous ruling to uphold a Reagan administration air pollution regulation that environmentalists considered too lax, the board noted. The distribution of power has shifted since then. With a mix of good luck and Senate GOP leader Mitch McConnell's application of some hardball politics, Republicans can count on a conservative supermajority on the Supreme Court. These political developments, as much as high-minded constitutional principle, explain conservatives' objections to the doctrine and their broader effort to invigorate judicial supervision of the executive. In time, however, conservatives might come to regret all of this. At their core, the cases the court heard Wednesday are about power, and more specifically, whether a 40-year

balance between the executive branch and the judiciary should be shifted. Long-term, who wins and who loses will depend on who controls these organs of government, the board wrote. With the major questions doctrine in place, courts already have more latitude to prevent liberal presidents from regulating ambitiously. By also pushing for Chevron's destruction, conservatives run the risk that when Republican administrations try to write weak regulations that arguably fall short of what Congress desired, future courts might not defer to them. In Slate, Mark Joseph Stern said the Supreme Court is about to seize way more power from Democratic presidents. The three liberal justices led by Kagan mounted an impressive defense of Chevron in the face of their colleagues' open hostility. At its core, Kagan explained the doctrine is about respecting democratic choices. Congress, whom the people elect, passes laws that

grant the president, whom the people elect, broad discretion to make certain policy choices by assigning key decisions to executive agencies. Federal judges, whom the people do not elect, must defer to these decisions so long as the accountable officials interpret the law reasonably, Stern said. With Chevron, each new administration provides its own answer to these questions. Without Chevron, each administration is handcuffed to the federal judiciary's answer, replacing a democratic structure with judicial policymaking. Jackson didn't say this next part, but everyone knows it. Because SCOTUS is relentlessly hostile to the administrative state, this system stacks the deck in favor of deregulation, which, let's be honest, means boosting Republican presidents and hobbling Democratic ones, Stern said. Without Chevron

deference, it'll be open season on each and every regulation, with under-informed courts playing pretend scientist, economist, and policymaker all at once. For the Brennan Center, Gotham Rau and Thomas Wolfe argued that opponents of Chevron are misusing and misreading history. We brought on Thomas Wolfe to talk a little bit about his position. Tom Wolfe, thank you so much for being here. I appreciate it. Thanks for having me. So our listeners have a little bit of background on this case. You wrote a really fascinating piece about the history of the Chevron deference or Chevron doctrine in the Brennan Center. I'm

wondering if you could tell me a little bit about your position. Maybe give us the two-minute top-line summary of your views on this case. Maybe give us the two-minute top-line summary of your views on this case. So the Brennan Center, along with a group of three historians of 19th century America, wrote a brief about the way agencies and courts interacted in the 19th century. I would say from the jump, folks might wonder why I'm even talking about all of this in a case that's nominally about fishermen in the present day and government regulations. And the basic reason is the U.S. Supreme Court's taken a really hard originalist turn. And that means that they've decided in a lot of cases that the way things were

must be the way things need to be going forward. So they're kind of locking us into however things were organized or however people thought about the constitution 100, 200, 250 years ago. In this case, there's a lot of historical argumentation being made that basically the notion that federal courts would allow agencies discretion to implement their statutes is kind of a new thing, that it only started with the Chevron case in the mid-80s. What we show is that actually it's generally been the case for hundreds of years that agencies have been kind of left to do their own thing and federal courts have had very little, if anything, to say about it, particularly in the 19th century.

So that if anything, the notion that the Supreme Court should be coming in now to micromanage federal agencies is the new thing, not getting rid of debt funds. Interesting. So I'm curious. I mean, I have to say, I'm sympathetic sort of reading the specifics of this case. You know, I've read some pieces from fishermen who are sort of operating under the specific regulation that's at question here, along with the Chevron doctrine more broadly. And there's a compelling argument there to me that these small businesses, sometimes family-owned, they're bringing on these monitors on their boat. They're being told they have to pay for the monitors by the agency, some $700 a day or whatever and feed them and house them.

And it seems like a sort of jurisprudence precedent that produces that might be broken. So I'm wondering if you, A, maybe agree that on the specifics of this case, there's a compelling argument here for the fishermen, and B, whether you do or not, if there's a way the Supreme Court might rule here in favor of the fishermen without actually totally undercutting or jettisoning the Chevron doctrine more broadly? The funny thing about the fishermen is that they're not really at issue in the case. They are a vehicle for a bigger ideological attack on the administrative state. So obviously, there needed to be plaintiffs to bring this case. But by the time we got up to the Supreme Court, the court wasn't even really asking questions that were specific to their situation. It was all about this question of whether they should get rid of Chevron or not, which is an issue that they could have taken in basically any administrative law

case coming out of the lower courts that involves Chevron, which is like a very healthy percentage of them. It turns out actually that the fishermen in this case weren't even quote-unquote injured by the regulation because they were ultimately refunded the costs that they were required to pay. Now, there's this underlying issue about whether that's good policy or whether that seems democratic that we would have a system like this, but this is the system that Congress created. Our elected representatives said this is what they wanted. We created an agency to help make those desires and wants of our elected officials actually able to be practiced to kind of be put into play. And that's the underlying result.

So I don't think a situation where agencies create regulations and enforce them in order to keep democratically enacted statutes in effect really poses a big constitutional issue. And then in this particular case, the fishermen likely didn't even have standing to show up here. So what we're really talking about is kind of like a proxy war over whether we should have powerful federal agencies or not. On that front, I think we should have agencies that have the flexibility they need to actually govern in the self-interest of everyone in the country. Chevron happened in an environment where the Reagan administration was basically trying to push away environmental regulations and wanting to empower the EPA to basically dodge environmentalists in a lot of ways. And at the time, you know, there's like these conservative justices like

Antonin Scalia, who at least in the early days of this kind of championed the Chevron doctrine. And now 40 years later, with a lot of agencies, regulatory agencies, maybe staff that have a more quote unquote democratic or left-leaning outlook on how some laws should be interpreted, the conservative judicial position has seemed to change a little bit. I'm curious if you view that as kind of a political hypocritical type thing, or if it's that the underlying facts of these cases or the underlying facts of, you know, around Chevron have changed in the last 40 years. I think you're putting your finger on some really interesting tensions in conservative jurisprudence that I don't think have really been worked out. And I think we've seen conflicts like this in other

areas where on the one hand, there is this desire to kind of deregulate, provide more power essentially to businesses as a downstream result. But there's also been a separate push towards what's called the unitary executive. And the idea there is that the president basically should be able to direct all the agencies in kind of whatever manner he pleases. Getting rid of Chevron actually cuts against that goal. So I think there are some ideological conflicts that still need to be worked out. But there's another common thread here, which is this U.S. Supreme Court. this U.S. Supreme Court. And what we're seeing in cases like this or the development of the so-called major questions doctrine or when the court is referring to the so-called non-delegation doctrine, in each of these cases, what's really happening is the Supreme Court is deciding to

give itself more authority. So to get back to what we were talking about a little bit earlier, Chevron currently empowers agencies to make decisions about how to implement policies to make the laws that Congress creates work. Courts, if it's reasonable what the agencies have done, courts will sort of stand back and let agencies go to work. In a world where you get rid of Chevron deference, it's the Supreme Court coming in doesn't go really from agencies back to Congress, and it doesn't go from agencies to the people. This is particularly the case because in each of these baskets of doctrines that the court's been dealing with that I mentioned, Chevron, major questions, non-delegation, the ultimate idea, ostensibly, is that the authority goes

back to Congress to legislate. But Congress isn't going to legislate all of the reams and reams and reams of regulations it takes to make their statutes work. So at the end of the day, you're going to see less governmental activity, less ability of Congress to kind of put their wishes into action through the agencies, and more power to the Supreme Court to decide what's good policy. And that's really not the role that judges are Court to decide what's good policy. And that's really not the role that judges are supposed to be playing in our system. So before I let you go,

I'm going to ask you to do a little bit of political prognostication here. I guess after sitting through some of these oral arguments, what's your expectation about where the court might land or what the outcome of this might be when this ruling comes down in the spring? court might land or what the outcome of this might be when this ruling comes down in the spring? So I never make predictions because I feel like for better or for worse, I've been surprised by what this court will do. My sense of things is though that they are going to be probing and working pretty hard to see if there's some middle ground between Chevron and no Chevron. What exactly that looks like, I'm not entirely certain, but it seems to me like there's at least some reasonable chance that we may still have some

form of agency deference doctrine by the time we hit June. But like I said, the court's thrown us a number of curveballs over the course of time, so I guess we'll see. Awesome. I love it. Thank you, Tom Wolfe. You can find his work on BrennanCenter.org. Tom, I appreciate you coming on and talking with us today. Yep. Happy to do it anytime. All right. That is it for The Left's Take. Please let us know what you thought about bringing in some of the voices behind these articles and having a little 10, 20 minute interludes here where you get to interview them. I'm very curious if you guys like this change to the podcast or how you might iterate on it. You can reach me,

Isaac, I-S-A-A-C, at readtangle.com. All right, that is it for what the right and the left are saying, which brings us to my take. When we first covered this last year, I said I was very torn about the issue, and after hearing oral arguments in the case, I can't say much has changed. Readers ask me regularly about the various pressures I feel to lean left or right or to try to find some middle ground in each newsletter and podcast, but I don't actually find those pressures influence me much. The greatest pressure, by far, is the one to take a position in the first place rather than just say, I don't know or I can't make up my mind. But in this case, I can't make up my mind. At a fundamental level, no federal agency should be able to put a monitor on a fisherman's boat,

then force that fisherman to pay that monitor's fee, and then arbitrate the fisherman's complaint. And any judicial doctrine allowing that seems broken. When you hear these fishermen explain it in their own words, it strikes you as deeply unfair. At that base level, I am sympathetic to the plaintiffs in this case and to the argument that the Chevron doctrine often hurts quote-unquote regular people and less powerful individual citizens just as much as it might be used to restrain major corporations. I also agree with some conservative pundits that argue this entire problem is the product of legislators outsourcing too much of the actual legislative process.

The vastness of the network of agencies and bureaucrats we need to enforce our laws is a necessary evil in a country of nearly 400 million people with so many particular industries that require informed oversight. The vastness of the network of agencies and bureaucrats we need to enforce our laws is necessary in a country of nearly 400 million people with so many particular industries that require informed oversight. But today, we've had successive presidents and congresses that have offloaded their duty of enacting far-reaching policy programs onto the administrative state. Rather than pass laws to accomplish specific ends, we're left with executives directing agencies to accomplish policy goals

under dubious interpretations of inapplicable laws, like Biden telling the Department of Education to forgive hundreds of billions of dollars of student loans because of a 9-11-era emergency law. At the same time, some of my positions moved after hearing oral arguments and reading the debate about them. For instance, I had written previously that the whiplash created by laws changing every two or four years, thanks to Chevron allowing new administrations to reverse course from previous administrations, created an unstable and erratic system. But U.S. Solicitor General Elizabeth Prelogar argued convincingly that this was a feature, not a bug, and that the administrative state should be responsive to the electorate. Mark Joseph Stern,

under what the left is saying, also made this case convincingly in slate. In other words, it is actually a superior system if voters can elect new presidents or members of Congress that can implement new heads of agencies to rule on ambiguities in law rather than outsource that process entirely to unelected judges. I also fundamentally appreciate the idea that judges, members of Congress, and presidents are not always the best people to determine how to implement policies or interpret ambiguous statutes in very complicated industries. While I think the fishermen here have a strong case, I'm fearful of a world we live in without Chevron, where Brett Kavanaugh might get to tell a nuclear scientist that a safety precaution she wants to implement is not necessary, or Elena Kagan gets to tell a securities, it was heralded by many conservative justices. But now that the agencies in place are acting against some conservative interests, there is a movement to strike it down. Whether that hypocrisy is a sign

of the underlying facts changing or an indication Chevron should stay or go depends on where you're sitting, but I think it's reflective of how politicized some of the judicial branch has become over the last 40 years. Again, I'm not really sure where I land here. It seems quite clear to me the court is going to limit or completely reverse Chevron, and I could see a world where that ends up curtailing administrative overreach and promoting stability in law. I could also see it unleashing a slew of deregulated corporations, judge shopping, and know-nothing judges acting against the interests of American voters. Or, given that the court hasn't even used Chevron in several years, perhaps the impact will be far less than either side expects. We'll be right back after this quick break. We'll be right back after this quick break.

All right, that is it for my take, which brings us to your questions answered. This one's from Bill in Loudon, Tennessee. Bill said, why can't a country like the United States present two presidential candidates that are more acceptable than Biden or Trump? Well, Bill, the answer is for two reasons. First, because people actually want Biden or Trump? Well, Bill, the answer is for two reasons. First, because people actually want Biden or Trump. And second, because a lot of people don't vote in the primaries. I've gotten some version of this complaint for the past year, and I bet that you've heard it too. There's a good chance you may have even said it. I don't want Trump or Biden to be the president, and it's not hard to understand that. I ruffled some feathers last Thursday when I gave my version of the best defense of Joe

Biden's presidency, and that wasn't totally surprising. His approval numbers are very low. He's currently at 39% and has been slowly dropping for about a year. Donald Trump can't say he was doing much better since he ended his term with a 38% approval rating. So why are we barreling toward a 2020 rematch that nobody wants? First, because a lot of people actually want it. Otherwise, it wouldn't happen. Partisanship may be at an all-time high, so editorials criticizing the opposing political party and

hyperbole about how the left or the right is bringing about the destruction of our country generate a lot of traffic. Every time I write something that gives credit to one party, I get scores of complaints from the other side. Every time I criticize, I'm told the other side is worse. And every critique I read is dialed up to 11. I recently heard a talk radio host compare the Pentagon not disclosing Lloyd Austin's disappearance to the Third Reich. With the amount of utter dismay about a potential Trump vs. Biden rematch, you'd think that we were talking about two candidates polling at 30 or 35% with their respective parties and a narrow lead over a crowded field. Instead, we're talking about one candidate with 66% of Republican

support, Donald Trump, and another with 72% of Democratic support, Joe Biden. To put it simply, Trump and Biden are nowhere near as unpopular as everyone thinks they are. What's more accurate is that Republican disdain for Biden is extremely high, as is Democrat disdain for Trump. So it's not that nobody wants Trump or Biden to run again, it's that nobody wants Trump and Biden to run again. Second, if every person who leaned more to the left or the right who is disillusioned with that side's leading candidate actually showed up to vote in a primary, then we'd probably get different results. If you look into the methodologies of any of the polls used by FiveThirtyEight to gather their polling average, you'll see that they get their numbers by asking people who are likely to

vote in the primary. Trump crushed the competition in Iowa, but turnout was at a record low. Biden isn't even campaigning and the DNC isn't holding debates, but who within that party is even demanding them? Not too long ago, we interviewed Nick Troiano from Unite America about election reform. His argument for open primaries convinced me, and I think the process should change, but it hasn't yet. So you should suck it up, choose a party, and participate in their process. If you don't show up in the primary, you're just resigning yourself to the choices each party makes and assuring yourself a November where you have to vote against the person you hate rather than ever having the chance to vote for a candidate you actually like.

All right, that is it for your reader question today, which brings us to our under the radar section. The House January 6th committee deleted more than 100 encrypted files before the GOP took the majority, according to a new report in Fox News. Barry Loudermilk, the Republican from Georgia, is leading an investigation into January 6th, and the panel is investigating alleged security failures that day, as well as the former select committee that investigated the riot. leading an investigation into January 6th, and the panel is investigating alleged security failures that day, as well as the former select committee that investigated the riot. Sources told Fox News Digital that the former select committee was required to turn over all documents to the now GOP-led panel, but that the committee received only two of the four terabytes of data said to

exist. A digital forensic team scraped the hard drives and found that 117 files were deleted and encrypted on January 1st, 2023, just days before they were supposed to be turned over. Fox News has the story, and there's a link to it in today's episode description. All right, next up is our numbers section. The typical number of rules published by executive agencies per year is 3,000 to 4,500, according to a 2019 Congressional Research Service report. The number of times the Congressional Review Act of 1996 has been used by Congress to overturn a federal regulation is 17. Of those 17, the number of overturned regulations that occurred during the Trump administration was 16.

The number of pieces of legislation enacted by the 98th Congress, that was in 1983 to 1984, was 677. The number of pieces of legislation enacted by the 118th Congress, to date, that's from 2023 to the present day, was just 35. The number of major laws passed by Congress between 1983 and 1987 was 16, one of which was passed on a bipartisan basis. The number of major laws passed by Congress between 2019 and 2023 was 27, seven of which were passed on a bipartisan basis. All right, and last but not least, our Have a Nice Day story.

All right. And last but not least, our have a nice day story. Don Wheeler shovels the walkway outside his home in Mentor, Ohio, every time it snows. It takes him hours to do, sometimes days, and can be a real challenge. There's always a challenge when you got a life in a wheelchair full time. But I always love a challenge, Wheeler said. One snowy day, when he hadn't gotten the time to shovel, he went outside to get a package he'd order from the Amazon delivery man when he heard him, already outside, shoveling his ramp. My heart wants to cry with joy. It does mean an awful lot. See, I'm getting emotional about it, Wheeler said. The world is changing, and it's changing fast, so little deeds like this need to be brought forward to bring humanity back to normalcy.

So God bless the kid, the gentleman, for doing it out of the kindness of his heart, he said. ABC News 5 in Cleveland has the story, and there's a link to it in today's episode description. All right, everybody, that is it for today's podcast. As always, if you want to support our work, you can go to readtangle.com forward slash membership. And don't forget to write in, let me know what you think about today's podcast episode and our new thing of bringing on some guests who are thinking about doing it more regularly. You can reach me Isaac, I S A A C at readtangle.com. Thanks, everybody. We'll be right back here same time tomorrow with the New Hampshire primary results.

Have a good one. Peace. Our podcast is written by me, Isaac Saul, and edited and engineered by John Wall. The script is edited by our managing editor, Ari Weitzman, Will Kabak, Bailey Saul, and Sean Brady. The logo for our podcast was designed by Magdalena Bokova, who is also our social media manager. Music for the podcast was produced by Diet75. And if you're looking for more from Tangle, please go to readtangle.com and check out our website. We'll see you next time. a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime,

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