Tangle - The Supreme Court will re-examine Chevron.

Episode Date: May 4, 2023

The Chevron deference. On Monday, the Supreme Court said it would reconsider the so-called Chevron deference, a 1984 precedent that conservatives argue gives too much power to federal regulators. The precedent directs courts to defer to a federal agency's legal interpretation when Congress has left statutory language ambiguous.You can read today's podcast ⁠here⁠, our latest YouTube video here, and today’s “Have a nice day” story ⁠here⁠.Quick hits (1:59), Today’s story (3:39), Left’s take (6:38), Right’s take (10:15), Isaac’s take (13:55), Listener question (19:13), How to submit a question and new YouTube video plug (20:48), Numbers (21:25), Have a nice day (22:11)You can⁠ subscribe to Tangle by clicking here⁠ or drop something⁠ in our tip jar by clicking here.⁠Our podcast is written by Isaac Saul and edited by Jon Lall. Music for the podcast was produced by Diet 75. Our newsletter is edited by Bailey Saul, Sean Brady, Ari Weitzman, 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.

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 Chinatown is streaming November 19th, only on Disney+. 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.

From executive producer Isaac Saul, this is Tangle. Good morning, good afternoon, and good evening, and welcome to the Tangle podcast, the place we get views from across the political spectrum. Some independent thinking without all that hysterical nonsense you'd find everywhere else. My name is Isaac Saul. I'm your host. And today we're going to be talking about the Chevron deference. This is a Supreme Court precedent that might be coming back in front of them this fall. We're going to talk about what it is and why it matters. Before we do, though, we have to jump in, unfortunately, with two small and silly corrections from yesterday's podcast. First of all, we referenced the potential for President Biden to appoint a replacement for Senator Dianne Feinstein. Kind of a Freudian slip there. Biden

can't technically appoint anyone to the Senate or the Senate Judiciary Committee, though I'm sure he'd have a role in picking her replacement. Second, I mentioned in my take Feinstein was picked two years ago by voters. In fact, Feinstein was elected in the 2018 midterms and has decided not to run for re-election at the end of her six-year Senate term in 2024. So that was actually four or five years ago that voters picked her. We were a couple editors short yesterday and it showed, so my apologies. These are the 82nd and 83rd corrections in Tangle's 197-week history and our first correction since April 26th. I track these corrections and place them at the top of the podcast in an effort to maximize transparency with listeners.

All right, with that out of the way, we'll start off with some quick hits. First up, the Federal Reserve raised interest rates 0.25% and indicated it may be the last hike for some time. Number two, Russia accused Ukraine and the United States of attempting to assassinate President Vladimir Putin in Moscow after two drones crashed into the Kremlin Palace. Ukrainian and U.S. officials denied the allegation, saying it was an excuse for escalation. Number three, the Library of Congress released files from the late Supreme Court Justice John

Paul Stevens, which will offer insights into thousands of court decisions, including the 2000 presidential election. Number four, yesterday, the FDA approved an RSV vaccine for people over the age of 60. Number five, a bipartisan group in Congress that includes Representatives Alexandria Ocasio-Cortez, the Democrat from New York, and Matt Gaetz, the Republican from Florida, has released the bipartisan Restoring Faith in Government Act, which bans members from trading stocks. The Supreme Court has announced it will take up a case next term that could potentially strip federal agencies of some of their powers. The case, Loper Enterprises v. Raimondo, seeks to overturn a nearly 40-year-old legal precedent known as Chevron Deference. It directs

courts to defer to federal agencies when interpreting unclear laws. as Chevron deference. It directs courts to defer to federal agencies when interpreting unclear laws. The Chevron deference has been targeted by conservatives and they believe it gives too much power to agencies and the executive branch. On Monday, the Supreme Court said it would reconsider the so-called Chevron deference, a 1984 precedent that conservatives argue gives too much power to federal regulators. That ruling directs courts to defer to a federal agency's legal interpretation when Congress has left statutory language ambiguous. The Chevron Deference is named after the 1984 Chevron v. Natural Resources Defense Council case. In that case, the Supreme

Court ruling gave deference to the Reagan administration's reasonable interpretations, allowing federal agencies to more easily withstand legal challenges from environmentalists. Now, though, conservative legal groups are arguing that federal judges should have more power to strike down regulations that were not narrowly defined. find. Several current justices have argued that judges should be reluctant to abide ambiguity in federal statutes and assert more power over the regulatory agencies. In Loper Bright Enterprises v. Raimondo, the case the Supreme Court just decided to hear, a group of commercial fishing companies are challenging a rule issued by the National Marine Fisheries Service. The rule requires the fishing industry to pay for the costs of observers who monitor compliance with fishery management laws. A divided federal court rejected the company's challenge to the rule, citing the Chevron deference. Judge Judith Rogers from the

U.S. Court of Appeals for the District of Columbia Circuit said that while the federal fishery law makes clear the government can require the fishing boats to carry monitors, it does not specify who must pay for the monitors. Relying on the Chevron deference, she said the National Marine Fisheries Service's interpretation of the law authorizing industry-funded monitors was reasonable and the court should defer to it. The Supreme Court declined to consider the technical issue of the payment scales in the case and instead took on the broader question of whether the Chevron deference should be overruled or have its application limited. Justice Katonji Brown Jackson has recused herself from the case, which court watchers believe was for her participation in the oral arguments of the case while a judge on the D.C. Circuit. Further, Justices Clarence Thomas and Neil Gorsuch have already expressed criticism of the Chevron deference in separate dissenting opinions. Interestingly, it was Gorsuch's mother,

Ann Gorsuch Buford, who prompted the Chevron case initially as the Reagan administration's Environmental Protection Agency administrator, where she began the anti-regulatory push that ended up in front of the Supreme Court in 1984. The court will hear the case this fall, meaning a decision isn't coming for several months, but their decision to hear the case has ignited a fresh debate about the Chevron deference and whether it constitutes good law. Today, we're going to examine some arguments from the left is saying. The left is worried about this case and argue that it could destroy important regulations for the climate and worker safety. Some argue the court is handing more and

more power to itself and corporations. Others say the real question is just how far the court will go in limiting Chevron. In Vox, Ian Millhiser said a new case seeks to make the court even more powerful. The court announced it will reconsider one of its most foundational decisions, which for decades defined the balance of power between the federal judiciary and the executive branch of government, he wrote. Chevron established that courts ordinarily should defer to policymaking decisions made by federal agencies, like the EPA, for two reasons. Agencies typically have far greater expertise in the areas they regulate than judges and are democratically accountable institutions because they are run by officials who serve at the pleasure of an elected president. It's reasonably likely the court will overrule this decision, which would mean the death of one of the most cited decisions in the federal

judiciary. Any decision overruling Chevron would also make the United States far less democratic. The court has already used the major questions doctrine to veto any federal agency action it deems to be of vast economic and political significance. But Chevron has largely prevented lower court judges from micromanaging the sort of routine and often highly technical regulatory decisions that the government makes all the time. In the Los Angeles Times, Lawrence Tribe and Dennis Aftergut warn that corporations are about to have even more power. Congress can rarely, if ever, predict every situation that might arise in applying or enforcing legislation, so it relies on expert administrators to address challenges.

With federal agencies crippled in playing that indispensable role, whole industries would be unleashed to operate free from mandates that protect clean air and water. Banks and predatory lenders could operate unconstrained by requirements that protect consumers, and the wealthy and powerful would make their own rules. The easiest way for powerful economic and political interests to weaken regulatory constraints is to denigrate scientific expertise and truth itself, they wrote. And the best way for them to achieve that is to enable judges to substitute their personal opinions for the decisions of expert administrators charged with carrying out Congress's objectives. We've already seen the hazards of dismissing expertise, like Texas Judge Matthew Kaczmarek, who substituted his judgment for the Food and

Drug Administration's in evaluating the safety of abortion pills. In the New Republic, Matt Ford said the real question now is whether the court will go big or go carefully. It's possible that the court will take the opportunity to overturn Chevron in full, but it is also possible and perhaps more likely that the court will take up the fishing company's invitation to clarify Chevron instead and simply rewrite it, Ford said. The justices have turned down more than a few petitions in recent years where they were asked to overturn Chevron, and in some relevant cases, they also went out of their way to avoid it. Thanks to the ruling last year in West Virginia v. EPA, the justices can now use the major questions doctrine to overturn federal

regulations if a plaintiff claims that Congress hasn't spoken clearly enough to justify the new rule, he added. The court's oral argument schedule means that the newly granted cases won't be heard until next fall at the earliest, so the justices may not say until next June whether they will be wielding a sledgehammer or a scapel against the administrative state that they hope to rein in. Alright, that is what the left is saying, which brings us to what the right is saying. Many on the right argue that a review of Chevron is long overdue and the administrative state needs to be restrained. Some point out the vast overreach of the government and how large and burdensome these agencies have become. Others argue that reversing the Chevron precedent won't have as big an impact as the left or right claims. The Wall Street Journal editorial board called it a welcome Supreme Court review of Chevron deference. Few Supreme Court doctrines have

been stretched more by regulators and lower court judges than Chevron deference, the board said. Loper Bright Enterprises v. Raimondo concerns an obscure fishing regulation where, in three narrow scenarios, the law also permits the agency to require vessels to pay the salaries of government monitors. This could cost fishermen 20% of their annual revenue. Citing Chevron, the D.C. Circuit Court of Appeals upheld the government's interpretation as reasonable because it was not expressly precluded by the law. In other words, as long as a law doesn't forbid the government from doing something, it can do it. Where have we seen this before? The board asked. The Biden vaccine mandate and eviction moratorium were particularly egregious examples. The court resolved those with the major questions doctrine, and now it is taking the next logical step by agreeing to revisit the much-abused Chevron precedent. There could be five

justices willing to overturn the doctrine or at least pare it back, which would strengthen the separation of powers and individual liberty. In the Washington Post, Hugh Hewitt called on the Supreme Court to save us from runaway regulation. Farmers and fishermen make their living the old-fashioned way, sweat and struggle. Increasingly, they share another thing in common, oppressive bureaucratic oversight, he wrote. 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 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. If the Supreme Court can summon the courage this year, it can deal the bureaucrats a body blow and free millions of Americans from diktats from on high, each one of which makes their lives more

difficult, more expensive, and decidedly less free. The Constitution is clear, Hewitt said. Laws are made by Congress. America's herring fishermen should not be forced to pay for their own tormentors simply because the New England Fishery Management Council of the National Marine Fisheries Service, an agency of the National Oceanic and Atmospheric Administration, a bureau of the Department of Commerce, says so. Congress never authorized the Commerce Department to empower NOAA to instruct NMFS to greenlight the New England Council to impose this onerous fee, but here it is. In reason, Ilya Soman said Chevron matters, but not as much as you think. While I would be happy to see Chevron overturned, I'm skeptical of claims it will make a huge difference to the future of federal regulation,

Soman wrote. My reasons for skepticism are, one, we often forget that the U.S. had a large and powerful federal administrative state even before Chevron was decided in 1984. Two, states that have abolished Chevron-like judicial deference to administrative agencies or never had it in the first place don't seem to have significantly weaker executive agencies or significantly lower levels of regulation. As a result, three, a great deal of informal judicial deference to agencies is likely to continue, even in the absence of Chevron. And four, Chevron sometimes protects deregulatory policies as well as those that increase regulation. It also sometimes protects various right-wing policies that increase regulation in an age where pro-regulation national conservatives are increasingly influential on the right. The Chevron decision itself protected a relatively deregulatory environmental policy

by the Reagan administration. All right, that is it for what the right and the left are saying, which brings us to my take. So I'm genuinely torn on this one, and I don't actually have a clean answer about where I stand. On the one hand, I think it is indisputable that the administrative state has become too vast and burdensome. The number of federal agencies, bureaus, and sub-agencies is so vast we aren't sure what the number even is, though it's more than 400. As Hugh Hewitt points out under what the writer sang, there are over 20 million people working for the federal government among state, local, and federal agencies. I have friends trying to open new breweries or build homes or start pop-up restaurants who say

these aspirations become farcical because of the administrative state. The hoops to jump through, the paperwork, the redundancies, it gets over the top quick. One fisherman who's impacted by the law wrote a powerful piece for National Review where he puts these challenges into digestible terms. If you're a good driver, you follow the rules of the road, obeying the speed limit, coming to full stops at stop signs, and yielding to pedestrians and crosswalks. And that ought to be enough, he said. But now imagine that the government mandated you to carry a state trooper in your passenger seat, one assigned to ensure you obey every traffic law at all times, and one whose salary you were obligated to pay out of your own pocket. Sound far-fetched? It's not. Something similar is happening to me today. I make my living fishing out of Cape May, New Jersey. While I don't have a state trooper riding

in my car, the federal government makes me carry a monitor on my vessel to observe my activities and report back to the government. And yes, the government wants to force me to pay the monitor directly, at least when I fish for herring, at a cost of more than $700 a day. That comes on top of an obligation to provide the monitor with a bunk and meals during what can be days-long outings. At times, the monitor is the highest paid person on the boat, out-earning both the captain and the crew. Any governmental framework that produces this outcome seems like it might be broken. I also thought Ilya Soman made a very strong case under what the right is saying about how this creates instability. Many on the left argue that leaving these minute rules to judges will send the regulatory state into chaos,

but Soman argues convincingly that the opposite is true. Quote, when the meaning of federal law shifts with the political agendas of succeeding administrations, that makes a mockery of the rule of law and undermines the stability that businesses, state governments, and ordinary citizens depend on to organize their affairs, end quote. On the other hand, the outcome of striking Chevron down is perhaps even more unsettling. Quite obviously, litigants will go judge shopping like they did in the abortion pill case and find a judge they believe to be friendly. In short order, we could have complicated questions of, say, how to regulate nitrogen pollution being settled by a judge with zero expertise in that area and lots of political baggage.

expertise in that area and lots of political baggage. This is why, for a long time, Chevron and the idea of deferring to policymakers with expertise enjoyed bipartisan support. While the so-called experts have gotten raked over the coals the last few years, I'm much more fearful of our new breed of know-nothingism where everyone with a Twitter account gets to act like they have decades of training and expertise in niche areas of science. The courts are already joining this trend, and that includes the Supreme Court. It recently struck down environmental regulations under the major questions doctrine that hadn't even gone into effect and may have done nothing at all if they had, yet the unexpert court determined they had broad political and economic

significance. There's also something blatantly hypocritical about all of this. The right loved Chevron when it was Reagan in office because left-leaning judges were left incapable of slowing down their deregulatory push. Few legal minds get worship more by the right than former Supreme Court Justice Antonin Scalia, who was a vocal defender of Chevron and once predicted it would endure and be given its full scope because it reflects the reality of government. Now the regulatory world grows, we have a few Democratic presidents, and it's time for Chevron to go. The law shouldn't change because the regulatory agencies are doing what the right doesn't like. Finally, there seems to be less recourse to push back on regulatory activity without Chevron. Right now, regulatory overreach can get settled at the ballot box, where voters

can elect new presidents or members of Congress or governors who usher in new regulatory agency heads. While Soman is right that this might create legal whiplash, it has the upside of being responsive to the electorate, which I like. So, I really don't know. Part of me thinks that in the interest of separation of powers and balancing our government, leaving Chevron in place is the best option. The court has already rolled back major regulatory power with the major questions doctrine, so leaving the minutiae to the agencies seems like a nice balance to that. But I'm struggling with where I land on the broader issue. Is it worth it to have a less

burdensome administrative state where the law may be more stable and businesses would have an easier time operating in exchange for a less democratic system where federal judges could end up making consequential decisions on which they have little expertise? It's a tough call, and I found the arguments on both sides appealing, even Soman's case that the ultimate net result may be negligible. At this point, that outlook might be the most preferable of all. be negligible. At this point, that outlook might be the most preferable of all. All right, next up is your question's answer. This one is from Tom in Falls Village, Connecticut. Tom said, as a political journalist, you must supplement your daily work digging for news stories and facts with personal reading. What books do you recommend for political novices?

Are there any must-reads about the nation's politics or leaders that U.S. citizens should add to their book lists? Great question, Tom. It definitely depends on what your political interests and level of understanding are. For novices, I was recently introduced to Ben Sheehan's WTF Does the Constitution Say, which is a cheeky and entertaining breakdown of how things are supposed to work. Ben is a newly minted Tangle reader, actually, and we got connected professionally, but I'm about halfway through the book and I'm really enjoying it. David McCullough wrote my favorite presidential biography on John Adams. It's dense reading, but a fascinating look into a tremendously important political character and also manages to tell the story of America early on. I also recently read These Truths, A History of the United States by Jill

Lepore. As Andrew Sullivan put it, Lepore panders a little to liberal sensibilities, but the book is jam-packed with the contradictions and intricacies of American history. If all you've ever gotten is the cookie-cutter U.S. history lessons, it's an enthralling and challenging must-read. There are obviously many more, but those three were reasons for me that all seem If all you've ever gotten is the cookie cutter U.S. history lessons, it's an enthralling and challenging must read. There are obviously many more, but those three were reasons for me that all seem worth sharing and stick out. I actually try to alternate the books I read, like one fun and one political or history based. So I'm not just always surrounded by U.S. politics and U.S. history. All right. That is it for our reader question. A quick reminder, if you want a question answered in the podcast, you can write to me, Isaac, I-S-A-A-C at readtangle.com. All right, a brief

plug before we jump into our next section. It is halftime of the Biden presidency, and we have a new YouTube video up in which I spend about 20 minutes giving a progress report on how things are going with views from the left and the right, as always, and then my take. You can find a link to that YouTube video in today's episode description, or you can just go to youtube.com backslash Tangle News. All right, next up is our numbers section. The percentage of eighth graders who scored below the basic level in U.S. history in 2022 was 40%. The percentage of eighth graders who scored below the basic level in U.S. history in 2018 was 34%. The number of chats people have started with Bing's AI-powered search engines since it launched in February is 500 million. The estimated number of people killed by RSV each year in the

United States is 14,000. The year a ban on gas stoves and new buildings will go into effect in New York is 2026. And the estimated loss in tax revenue for California and New York due to wealthier taxpayers leaving for states with lower tax rates was $92 billion in 2022. tax rates was $92 billion in 2022. All right, and last but not least, our have a nice day story. The return of the button is coming. Automakers like Volkswagen have made a discovery many normal folks have understood for a while. Touchscreens in cars can be unbelievably aggravating.

Not just that, but some regulators believe they are increasingly dangerous too and contributing to an increase in driving deaths. But without any government pressure, automakers appear to be responding to the desires of their customers and are starting to reintroduce buttons and knobs. Because buttons and knobs are actually more expensive than screens, premium automakers like Porsche have been leading the way, but now others are jumping on board too. Slate 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. A quick reminder, we have a Friday edition of the newsletter coming out tomorrow. If you want to receive that, you need to go to retangle.com backslash membership and become a member. And please don't forget to go check out our YouTube channel, subscribe, like, watch the videos and spread the word. We'll be right back here on Monday. Have a great weekend. Peace. Our podcast is written by me, Isaac Saul, and edited by John Law. Our script is edited by Ari Weitzman, Bailey Saul, and Sean Brady.

The logo for our podcast was designed by Magdalena Bukova, who's also our social media manager. Music for the podcast was produced by Diet75. For more on Tangle, please go to readtangle.com and check out our website. 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 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.