Tangle - SCOTUS overturns Chevron.

Starting point is 00:00:00 Working in the trades is intense. It can be stressful and painful. Some guys use drugs and alcohol to cope. But when we ask for help, or we see someone struggling with addiction... Our silence speaks volumes. See how you can help, or get help, at Canada.ca slash ease the burden. A message from the Government of Canada. Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu,

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Starting point is 00:00:53 From Searchlight Pictures comes A Real Pain, one of the most moving and funny films of the year. Written and directed by Oscar-nominated Jesse Eisenberg and starring Eisenberg and Emmy Award winner Kieran Culkin, A Real Pain is a comedy about mismatched cousins who reunite for a tour through Poland Thank you. this year, garnering rave reviews and acclaim from both critics and audiences alike. See A Real Pain only in theaters November 15th. From executive producer Isaac Saul, this is Tangle. Good morning, good afternoon, and good evening, and welcome to the Tangle Podcast, a place where you get news from across the political spectrum,

Starting point is 00:01:57 some independent thinking, and a little bit of Isaac's take. I'm your host, John Law, and today we're going to be talking about the decision that came back from the Supreme Court regarding Chevron deference. Before we get started, on Friday, we published a special edition piece breaking down the first presidential debate between Joe Biden and Donald Trump. Our editorial team shared their thoughts on each candidate's high and low points, the night's most revealing moments, and who came out on top. moments and who came out on top. Isaac, along with managing editor Ari Weitzman and editor Will Kabeck, also got together on the Tangled podcast for a more candid discussion about what the debate could mean for the presidential race and whether it's likely to produce any major shakeups ahead of the party's nominating conventions this summer. You can check out the Friday edition and the podcast in links in today's episode description. Note that the Friday edition is

Starting point is 00:02:44 paywalled for non-members, but now's as good a time as any to sign up for a membership. All right, with that out of the way, let's jump over to today's quick hits. First up, the Supreme Court ruled that former U.S. presidents cannot be prosecuted for official acts, granting former President Trump some immunity for actions relating to January 6th. The case returns to the lower courts to decide whether special counsel Jack Smith's election interference case against Trump can continue. Number two, additionally, the court kept a hold on efforts in Texas and Florida to limit how social media platforms regulate content posted by users, returning the case to the lower courts. Number three, President Biden and his family met at Camp David over the weekend amid speculation over the future of his campaign following Thursday's presidential debate. Biden's family reportedly criticized the president's top advisors for their preparation, but Biden has thus far resisted calls to fire any

Starting point is 00:03:45 of his staff. Number four, Hurricane Beryl, the first hurricane of 2024, strengthened into a category four storm on Sunday as it moves toward the Caribbean. On Thursday, the National Oceanic and Atmospheric Administration warned that the United States could face one of the worst hurricane seasons in two decades. And number five, France's conservative National Rally Party won the country's first round parliamentary election on Sunday, setting the stage for a runoff this week that could determine legislative control. Meanwhile, the Supreme Court has now swept aside longstanding legal precedent in its ruling today overturning that Chevron doctrine, majorly curtailing the power of federal agencies to interpret the laws they regulate. The decision is expected to have far-reaching implications

Starting point is 00:04:42 on everything from the environment to health care. I think in the short term, it's a very, very big deal. I think that we're going to see an enormous number of challenges to government regulations in the environmental area, in food safety, in health care, health care administration. There will be many, many challenges. healthcare administration. There will be many, many challenges. And the lower courts and the Justice Department that defends those regulations are going to be very, very busy in the near term. On Friday, the Supreme Court overruled the court's 1984 decision in Chevron v. Natural Resources Defense Council, which deferred to the judgment of federal agencies in interpreting statutory text to create regulations based on ambiguous laws. The 6-3 ruling fell along ideological lines, with the court's six Republican-appointed justices in the majority. The decision is

Starting point is 00:05:34 expected to shift the balance of power between the executive and judicial branches, while compelling Congress to more specifically address policy issues when creating new laws. The ruling addressed two cases, Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce, brought by fishermen in New Jersey and Rhode Island, challenging a 2020 National Marine Fisheries Service rule requiring herring fishermen to pay for government-mandated observers who track their fish intake. The fishermen were eventually reimbursed for costs, and the observation program ended in 2023 due to a lack of federal funds. The challengers asked the

Starting point is 00:06:11 court to weigh in on both the validity of the NMFS rule and the Chevron precedents undergirding it. During oral arguments, court watchers predicted the court would rule in favor of the plaintiffs on both questions. You can read our previous coverage with links in today's episode description. Writing for the majority, Chief Justice John Roberts determined that Chevron was inconsistent with the 1946 Administrative Procedure Act, which outlines how federal agencies can propose and establish regulations and offers guidelines for the court to review those regulations. Roberts said the APA directs courts to decide legal questions by applying their own judgment and makes clear that agency interpretations of statutes, like agency interpretations of the Constitution, are not entitled to deference. Thus, courts

Starting point is 00:06:56 retain the final say on whether the agency's regulations are compatible with the new law. Chevron is overruled, Roberts wrote. Roberts also rejected the argument that agencies are better suited than courts to parse ambiguities in federal law, even on technical or scientific questions. He further dismissed the notion that stare decisis, the legal principle that courts should defer to precedent when deciding a case with similar legal issues to past cases, should compel the court to uphold Chevron. Roberts said the Chevron doctrine was unworkable because it provided no guidance on how to assess the ambiguity of a law. While the court's decision doesn't overturn past cases that relied on

Starting point is 00:07:35 Chevron, the court is expected to rule on Monday on a case covering the statute of limitations on challenges to federal agency actions. A ruling for the plaintiffs could undercut past decisions supported by Chevron. Justice Elena Kagan dissented and was joined by Justices Sonia Sotomayor and Ketanji Brown Jackson. Jackson recused herself from the Loper-Bright decision, as she had heard oral arguments in the case while she was still a U.S. Court of Appeals judge. Kagan characterized Chevron as the warp and woof of a modern government, supporting

Starting point is 00:08:05 regulatory efforts of all kinds, and suggested that the court's decision would create a jolt to the legal system. She also disagreed with the majority's assertion that the ruling would rebalance the branches of government. Instead, Kagan said, it gives the court's exclusive power over every open issue, no matter how expertise-driven or policy-laden, involving the meaning of regulatory law. Although Chevron was initially supported by Justice Antonin Scalia and other conservative legal experts, it was later maligned by conservative activists who saw the doctrine as a tool to justify sweeping agency rules on the environment, consumer and workplace safety, financial oversight,

Starting point is 00:08:42 and other policy areas. In recent years, the Supreme Court has chipped away at federal administrative power, striking down the Biden administration's moratorium on evictions in 2021 and its plan to cancel $400 billion of student debt in 2023. Today, we're going to explore arguments about the court's decision from the left and the right, and then Isaac's take. We'll be right back after this quick commercial break. Working in the trades is intense. It can be stressful and painful. Some guys use drugs and alcohol to cope. But when we ask for help or we see someone struggling with addiction,

Starting point is 00:09:32 our silence speaks volumes. See how you can help or get help at Canada.ca slash ease the burden. A message from the Government of Canada.ca slash ease the burden. A message from the government of Canada. From Searchlight Pictures comes A Real Pain, one of the most moving and funny films of the year. Written and directed by Oscar-nominated Jesse Eisenberg and starring Eisenberg and Emmy Award winner Kieran Culkin, A Real Pain is a comedy about mismatched cousins who reunite for a tour through Poland to honor their beloved grandmother. The adventure takes a turn when the pair's old tensions resurface

Starting point is 00:10:09 against the backdrop of their family history. A Real Pain was one of the buzziest titles at Sundance Film Festival this year, garnering rave reviews and acclaim from both critics and audiences alike. See A Real Pain only in theaters November 15. Bill Payne, only in theaters November 15th. First up, let's start with what the left is saying. The left opposes the ruling, calling it the latest common-sense precedent to be struck down by the conservative court. Some say the decision will have wide-ranging consequences for important government functions.

Starting point is 00:10:45 Others suggest the court is brazenly disrupting the balance of power in government. In the Washington Post, Ruth Marcus wrote, the justices toss yet another precedent, delighting conservatives. Administrative law does impact the emotional punch of abortion access or LGBTQ plus rights, but the day-to-day impact of this seemingly arcane issue is profound. The fundamental question in Friday's ruling boiled

Starting point is 00:11:05 down to, who decides, courts or agencies? The conservative majority's answer, courts, affects everything from clean air to drug safety to student loans, the broad landscape of government regulation. And that power matters more than ever now that Trump, who had appointed 28 percent of federal judges by the time he left office, has the prospect of naming more in a second term. Every law setting out regulatory authority is going to contain gaps and ambiguities. Agencies are best suited to interpret the statutes under which they operate and deal with the myriad of intricate and technical questions that inevitably arise. For their part, courts aren't supposed to be policymakers

Starting point is 00:11:42 or best positioned to make these expert judgments, Marcus said. Without the restraining effort of Chevron deference, it's not hard to imagine conservative litigants and corporations racing to friendly jurisdictions to bring challenges to agency action. In a Republican administration, the same could happen just the other way around. In the Daily Beast, Shan Wu said, Reversing Chevron will undo many rights and protections for all of us." The reversal of the Chevron case by the Young Turks, Angry Old Men, and Chief Justice John Roberts, who make up the Supreme Court's conservative majority, checked off an important box in the Federalist Society's checklist for reshaping America, Wu wrote.

Starting point is 00:12:22 It might seem like common sense to believe that an agency like the U.S. Fish and Wildlife Service would be more about, say, the proper classification of the western gray squirrel, the example given by dissenting liberal justice Elena Kagan, than a rando judge. But common sense never stands in the way of revolution. Perhaps it is some kind of multi-generational conservative trauma passed down since the New Deal that motivates their obsession with dismantling the protections of the administrative state. But like any trauma, the effects can be illogical and have far-reaching destructive consequences, Wu said. The reversal of Chevron assures the Roberts Court of its place in history as a court that seeks to consolidate the reins of power over Americans in nine unelected public

Starting point is 00:13:04 officials. But its place in history will also consolidate the reins of power over Americans in nine unelected public officials. But its place in history will also include the accomplishment of driving public confidence in the high court to record lows that may ultimately fuel reform in the court itself. In The American Prospect, Hassan Ali Kanu asked, who's going to check the Supreme Court? The unmistakable theme of this Supreme Court term has been raw power and just how much of it the high court has in our particular system of democracy compared with the other branches, Canoe wrote. The Loper-Bright ruling furthers a decades-old goal of the conservative movement to gut the so-called administrative state to kneecap federal regulation on businesses in plain terms.

Starting point is 00:13:41 It's a neat example of the court's power. Not only are the justices empowered to define the shape and scope of the executive branch, they are in fact able to accrue that power to themselves simply by declaring it so. In recent years, the court has had no compunction about flexing and stretching the bounds of its immense practical powers in increasingly brazen ways. By now, the point is so glaringly clear that perhaps the most spot-on descriptions come from the conservative justices' liberal colleagues, Canu said. The way the court exercises its power certainly suggests that the six justices in the conservative majority might just be the supreme rulers of the United States, at least as a practical matter.

Starting point is 00:14:20 Congress and the president, you know, the other co-equal branches, might want to do something about that. All right, that's it for what the left is saying, which brings us to what the right is saying. The right supports the ruling arguing that it returns the power to interpret laws back to its proper place, the courts. Some say the decision is the most important of the court's current term. Others say Congress must now assert its power to legislate to further tamp down the administrative state. National Review's editors wrote, The administrative state is put back in its constitutional place.

Starting point is 00:15:03 Ending Chevron deference has been a long-term project of constitutionalists. The doctrine, minted only in the mid-1980s, never sat comfortably with the traditional power of the judiciary to, in the words of Chief Justice John Marshall, say what the law is. Nor was it consistent with the Administrative Procedure Act passed in 1946, which provided that a court-reviewing agency action must decide all relevant questions of law and interpret the relevant statutory provisions, the editor said. Neither of these decisions prevented the agencies from exercising powers explicitly granted by Congress or from pursuing cases that could stand up in court, so the alarms about crippling

Starting point is 00:15:41 administrative power are overstated. Nor were these decisions, as the court's liberals would have it, a judicial power grab. Loper Bright restores the proper primacy of Congress, the editors added. All of this is not only good, but necessary and healthy for a democratic and constitutional system. If it provokes in Congress the habit of writing laws, and in agencies the habit of obeying them, all the better. In City Journal, Ilya Shapiro argued, Overturning Chevron is the story of this Supreme Court term. Originally meant to streamline the Reagan administration's deregulatory agenda in the face of judicial obstruction, the doctrine wound up enabling and ratcheting up the bureaucratic bloat. Good for the court to recognize that its 40-year-old experiment in rebalancing the

Starting point is 00:16:35 relationship between administration and judicial review has failed. Indeed, the court itself hasn't used the doctrine in nearly a decade, Shapiro said. Chevron led to agency overreach, haphazard practical results, and the diminution of Congress. Though intended to empower Congress by limiting the role of courts, Chevron instead enabled agencies to aggrandize their own powers to the greatest extent plausible under their operative statuses, and often beyond. Courts, in turn, have gotten lazy in interpreting statutes. It's become a vicious cycle of legislative buck-passing and judicial deference to executive overreach, Shapiro wrote. As I wrote in an amicus curiae brief, Chevron deference rests on the presumption

Starting point is 00:17:15 that Congress won't over-delegate and that agencies will be loyal agents, but experience has shown that Congress loves shirking accountability and agencies love pursuing their own interests. In Fox News, Senator Eric Schmidt, the Republican from Missouri, said that the Supreme Court just defeated big government. It's up to Congress to make it stick. The greatest fear of America's founders was government power left unchecked and unaccountable to the American people. In the last 40 years, however, the burgeoning of the administrative state has turned this founding nightmare into a reality. Federal bureaucrats, under the guise of purported expertise, have been able to wield immense control over the lives of American citizens. These bureaucrats have destroyed small businesses and steamrolled

Starting point is 00:17:59 private industries, all while accumulating more power for themselves, Schmidt wrote. Fortunately, the Supreme Court corrected this decades-long federal overreach, delivering a huge victory to all Americans being suffocated by crushing government regulation. Given the relative power of parties involved, Loper Bright was a true David versus Goliath case. The fishermen were facing off against a massive and nearly all-powerful bureaucracy. In doing so, they represented the plight of scores of Americans struggling under the crushing weight of government regulation, Schmidt said. However, the battle is not yet won. With the Supreme Court rightfully returning

Starting point is 00:18:34 authority back to the legislative branch, Congress must not punt this back to the regulatory agencies. It's the duty of our elected leaders in the House and Senate to take on the burden of legislating, just as it was before. All right, that is it for what the left and right are saying, which brings us to Isaac's take. Just a reminder that this is Isaac's opinion, and I'm just reading it in the first person. So we've written about Chevron a couple of times before, and I said in both of those editions that I was really torn about the issue, and I feel the same today. Our federal government feels vast, with legislators outsourcing much of their work in codifying positions to

Starting point is 00:19:20 agencies. At the same time, I get why deferring to agency experts on technical questions is often preferable, especially since some ambiguities in the law are inevitable. That said, I think it's useful to apply the same framework we always do when evaluating court cases, separating the legal argument from the decision's practical effects. So before I get into those effects that are leaving me so conflicted, let's get into the legal argument. Here, I'm less conflicted. I think the court's opinion in these cases is pretty convincing. In his opinion for the majority, Chief Justice Roberts explained why the Chevron Doctrine is inconsistent with the Administrative Procedure Act, a law that sets out procedures for federal agencies and instructions for courts to review those procedures. The APA, Roberts argued,

Starting point is 00:20:05 makes clear that agencies' interpretations of statutes, like agency interpretations of the Constitution, are not entitled to deference. Furthermore, Roberts made a strong case that granting deference to federal agencies only when statutes are ambiguous is an unworkable standard. In other words, courts are responsible for deciding when regulations are exercised within the rule of law. Chevron deference was just that, a deference given to federal regulators in deciding technical cases under ambiguous law. And there's nothing in the Constitution or written law that assures or guides it. Justice Kagan advanced what I think is the best argument for keeping Chevron in her dissenting opinion, that overturning the legal doctrine goes against stare decisis. But when the court is

Starting point is 00:20:49 deciding whether or not a way of making legal decisions is constitutional and valid, saying that other courts use that method of making legal decisions is a circular argument. As Gorsuch argued, pretty convincingly in his concurring opinion, the difference applied under the Chevron doctrine goes against court precedent in deciding agency powers going back to the 1800s. If stare decisis calls for judicial humility in the face of the written law, it also cautions us to test our present conclusions carefully against the work of our predecessors, Gorsuch wrote. And moving forward, without deference given to federal agencies, I hope the court will extend that humility to matters where they don't have expertise.

Starting point is 00:21:27 But I'm worried that many courts across the country won't, which brings me to the practical outcomes. Just a few days before this ruling came down, the Supreme Court decided a similar question in Ohio v. EPA. In the initial version of the ruling the court released, the majority made five references to nitrous oxide, also known as laughing gas, rather than nitrogen oxide, the compounds that were actually at the center of the case. The court corrected the error after publishing its ruling, but it was precisely that kind of screw-up that supporters of Chevron say illustrates the value of leaning on agency experts. Conversely, the cases brought before the court to challenge Chevron were emblematic of agency overreach. Few people could read about a federal agency

Starting point is 00:22:10 forcing a monitor onto a fisherman's boat, then making that fisherman pay the monitor's fees, especially when the fee could reach up to $700 a day, high enough to undercut their entire business and feel like it was a fair setup. And while I remain torn about Chevron being overturned, I do think I have clarity about the system I wish we had, courts giving deference to agencies that in turn are not captured by politics.

Starting point is 00:22:35 In truth, I think that the court giving that difference on ambiguous technical questions is unambiguously positive, but it just doesn't work in our current system the way it should because agencies too often exert their power based on politics rather than expertise. Of course, the other side of the coin is worrisome too. Previously, agencies at least had a slight upper hand in defending their recommendations in front of partisan judges with the weight of Chevron behind them. Without Chevron, that upper hand is gone, meaning voters will have less sway on federal policy since agencies are beholden to elected members of Congress and the president while judges are appointed. With all that said, I have a hard time joining the chorus of concerned

Starting point is 00:23:15 voices on the left. I certainly think this ruling could release a firehose of court challenges to long-standing regulation, and I also think it's possible some judges will make serious errors that could have been avoided with Chevron in place. Yet, at the same time, this Supreme Court has been putting Chevron aside since 2016, and the concept was entirely foreign until its invention in 1984. It's not as if federal agencies will stop interpreting legislation to advance regulations and experts are going to suddenly stop having a voice, they'll still argue their points and brief the courts when necessary, and judges will have to weigh content matter expertise against their own legal judgment. To put it more directly, while I'd certainly prefer our judges in courtrooms to defer to topic-specific experts on technical and ambiguous policy questions, I don't think the court system is going to spin into chaos, nor will our laws be impossible to enforce without Chevron in place.

Starting point is 00:24:10 It could even motivate more specific, better thought out legislation from Congress. We'll be right back after this quick break. We'll be right back after this quick break. Our silence speaks volumes. See how you can help or get help at Canada.ca slash ease the burden. A message from the Government of Canada. From Searchlight Pictures comes A Real Pain, one of the most moving and funny films of the year. Written and directed by Oscar-nominated Jesse Eisenberg and starring Eisenberg and Emmy Award winner Kieran Culkin, A Real Pain is a comedy about mismatched

Starting point is 00:25:10 cousins who reunite for a tour through Poland to honor their beloved grandmother. The adventure takes a turn when the pair's old tensions resurface against the backdrop of their family history. A Real Pain was one of the buzziest titles at Sundance Film Festival this year, garnering rave reviews and acclaim from both critics and audiences alike. See A Real Pain only in theaters November 15th. 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

Starting point is 00:25:45 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+. Alright, that's it for Isaac's take, which brings us to Your Questions Answered. This one's from Robert in Los Gatos, California. Robert asks, do you know why people answer your surveys with an unsure no opinion? Why do they even bother? Okay, so we're always happy to talk about our survey methodology. Every day in our extras section, we include the results from the previous day's reader survey.

Starting point is 00:26:25 in our extras section, we include the results from the previous day's reader survey. Last Tuesday, from our edition on the Ten Commandments, our survey netted just over 1,800 replies, our second most answered survey ever. As many of you know, each survey we give includes an option for unsure slash no opinion, but even 1,800 respondents only represent 1% of our subscribers, so most of you don't know about that part of what we do here at Tangle. We aren't exactly polling experts and our reader surveys are far from scientific. But what we've learned is it's best practice

Starting point is 00:26:53 to include a response option for readers who aren't firm in their opinion for one reason or another. The theory is that including an unsure no opinion option informs us of when a topic is a little confusing or complicated, so readers can genuinely report that they just haven't formed a strong opinion. Further, we believe that a lot of our survey responses come from the same,

Starting point is 00:27:12 relatively small group of people, and if those people know that they can fill out our surveys, even when they aren't firm in their stances, then we'll be able to reach more of that group. And the more respondents we get, the more confidently we can say that we're getting an accurate sample of our readership, or at least the most engaged portion. But maybe we're way off base here. If you take our reader surveys, write in to let us know what you think of that option, even if you're unsure or have no opinion. All right, next up is our under-the-radar story. Israel is preparing for the end of the war in Gaza by preparing to test a series of bubbles,

Starting point is 00:27:51 humanitarian enclaves, and select northern Gaza neighborhoods designed to be insulated from Hamas. Under the plan, the Israeli military would distribute aid to vetted local Palestinians who would disperse the aid and gradually expand their responsibilities to take over civilian governance in the area. Israel hopes to eventually expand these bubbles throughout Gaza to gradually replace Hamas's rule in the Strip. The initiative, however, faces growing skepticism within Israel and the surrounding Arab states. The Financial Times has this story, and there's a link in today's episode description. All right, next up is our numbers section.

Starting point is 00:28:36 The number of judges appointed to the federal bench by President Joe Biden to date is 201. The percentage of active judges in the federal court system appointed by Biden is 23%. The number of judges appointed to the federal bench by former President Donald Trump during his term is 234. The percentage of active judges in the federal court system appointed by Trump is 28%. The amount per day that herring fishermen were required to pay to bring mandated observers on their ships in compliance with a 2020 agency rule that prompted the challenge of Loper Bright Enterprises versus Raymundo is $710. The number of federal agencies out of 16 surveyed that received ratings of excellent or good by more than half of U.S. adults in a 2023 Gallup survey is four, the U.S. Postal Service at 62%, the Secret Service at 55%, the Department of Defense at 53%, and Nassau at 52%. The number of federal agencies that over 50% of Republicans rate as doing an excellent job

Starting point is 00:29:33 is 1, the U.S. Postal Service. And the number of federal agencies that over 50% of Democrats rate as doing an excellent job is 12. All right, and last but not least, our have a nice day story. Residents of Santa Ana, California have difficulty consistently finding nutritious food, but a new organization is changing that. The Seva Collective is a food pantry that began to address food needs at the beginning of the pandemic and has now become a community staple that many residents rely on for ease of use. Individuals drive up to the food bank where volunteers load their cars with fresh produce. Save a Collective emphasizes giving out fresh produce and unprocessed foods to encourage healthy habits and slow systemic health problems, according to CBS News. The Uplift has this story, and there's a link in today's episode description.

Starting point is 00:30:33 All right, everybody, that is it for today's episode. As always, if you'd like to support our work, please head over to readtangle.com and sign up for a membership. We'll be right back here tomorrow. For Isaac and the rest of the crew, this is John Law signing off. Have a great day, y'all. Peace. Our podcast is written by me, Isaac Saul, and edited and engineered by John Law. The script is edited by our managing editor, Ari Weitzman, Will Kedak, Bailey Saul, and Sean Brady. The logo for our podcast was designed by Magdalena Bokova, who is also our social media manager. 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.

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Tangle - SCOTUS overturns Chevron.

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