DawgTalkers.net Forums DawgTalk Palus Politicus Loper Bright Enterprises v. Raimondo

No one has mentioned this case so I thought I'd bring it up. SCOTUS has granted certiorari and will hear question 2:


Justice Jackson has already recused herself. If I remember she was at district when this was heard and that would be a conflict.

This case has the potential to reign in government agencies. I wouldn't think we will see a dismantling of Chevron but I'd like to think this would be stricter limits on statutory agencies promulgating regulation with the force of law, especially in the face of conflicting previous legislative action.

So even more unbridled capitalism? Restrict and block even more checks and balances?

That's what you got out of reading this? WOW.

We see how well the banking industry does without regulation....

Resource management planning is a fundamental job of the government. It is part and parcel of commerce. Section 8 of the constitution.

In California, unrestricted pumping of groundwater allowed seawater to be drawn into the groundwater supply. Obviously that does not work. The state has to manage groundwater pumping, and we have to pump fresh water along the coast to keep it from happening again.

Limiting Chevron is not about removing government regulation. It is about limiting what agencies can do outside of legislative scope. The WV vs EPA case was about this as well. It didn't remove the EPA's ability to regulate the environment (as some claimed). It reverse their decision that was in direct conflict with the law congress passed. They changed the terms of the monitoring instead of following the law as defined. Far too often agencies think they can create law out of thin air, but that is not the executives remit.

I understand exactly what the motivation here is. And that's exactly what I got out of it.

No, you have some preconceived notion in that broken brain of yours that wants to fight about something even when you haven't the faintest clue what it really is about.

So how does this case further "unbridled capitalism". And see if you can answer it in a cogent way and not a bunch of google searches of headlines.

The title of the thread is Loper-Bright-Enterprises-v-Raimondo

You provided no link so I looked up that above.

Although Chevron is mentioned, if you want to entertain a discussion, a link is normally the best way to start.

Here is the docket

https://www.supremecourt.gov/docket/docketfiles/html/public/22-451.html

Sometimes you're an odd little fellow.

You see, you have pointed out in the past what a single case can actually mean. How it sets a precedent for any cases that follow which fall under that umbrella. That a single case has far reaching implications moving forward. Yet here, in this case you've done none of that. But you know that it does and you know what that is.


Not only would you "like to think this would", but you know that it will depending on the decision. Then when someone such as myself points that out you try to act like they are trying to start a fight. And of course as per usual you take a personal shot claiming their brain is broken. I'd expect no less. That's your M.O.

So if there is ambiguity in a statue, the agency can provide an interpretation as long as it is reasonable and rational.

Well that seems reasonable to me. Otherwise, everything has to be in the legislation, and we know that legislation is not 100 percent unambiguous.

https://www.law.cornell.edu/wex/chevron_deference

But you didn't point out what you said you "pointed" out. You said "So even more unbridled capitalism? Restrict and block even more checks and balances?" You immediately went to your "group think" of I mentioned therefore you need to be against it. Funny how that work.

I asked how this would create more "unbridled capitalism" and you punted on the question.

I do hope they clamp down on Chevron, I believe there is too much power in it right now. Limiting the executive to enforcing the legislative mandates is exactly an example of "checks and balances".

And it is reasonable until the agency steps outside of their remit, either what they are allowed to enforce per their "expertise" or try to change the rules in defiance of legislation.

And to be fair, reasonable and rational can mean different things to different people. Clarifications from the court in this would be a good step.

Here is something you may find informative........

Supreme Court to decide major case on federal rule-making power

Republican lawmakers have been critical of a decades-old doctrine that gives deference to agencies

The Supreme Court will decide a challenge over how courts assess federal rule-making, setting up a major case for its next term that could change the balance of power between executive agencies, Congress and the judiciary.

The case the court announced Monday, Loper Bright Enterprises et al. v. Raimondo, centers on a challenge to a Commerce Department rule on fishery inspectors. But the justices said they will reconsider a 39-year-old legal precedent that has been used to uphold thousands of agency rules across the entire federal government.

Federal agencies, from the Justice Department to the EPA and the Federal Communications Commission, regularly assert what’s known as “Chevron deference” in defending their rules in court.

That doctrine stems from a 1984 Supreme Court case, Chevron USA Inc. v. Natural Resources Defense Council Inc., in which the court found that judges should defer to the agencies’ interpretations of a law if it is ambiguous.

Republican lawmakers and the conservative legal movement have been critical of the doctrine for years, describing it as a way that regulatory agencies go beyond what Congress intended when it passed laws.

With the high court’s current majority of six justices appointed by Republican presidents, federal agencies have been met with increasing skepticism. Several justices, including Samuel A. Alito Jr., Clarence Thomas and Neil M. Gorsuch, have questioned the Chevron decision.

Doctrine questioned

In Loper Bright Enterprises v. Raimondo, the U.S. Court of Appeals for the D.C. Circuit upheld the Commerce Department rule from a challenge from fishing companies.

The fishing companies in a petition called the rule a “threat to efforts to rein in agency overreach” because it would require them to pay the inspectors overseeing their fisheries directly. That rule is a way to get around Congress deciding how much funding there should be for fisheries inspections, they argued.

The petition said the Chevron doctrine has been a “disaster in practice” and led to the widespread growth of federal agencies.

“Lower courts see ambiguity everywhere and have abdicated the core judicial responsibility of statutory construction to executive-branch agencies,” the fishery companies said. “The exponential growth of the Code of Federal Regulations and overregulation by unaccountable agencies has been the direct result.”

The Biden administration defended the fishery rule as well as the broad agency deference under the Chevron decision in a brief meant to dissuade the justices from agreeing to decide the case. The administration argued that the doctrine has been used in thousands of cases across four decades and is relied on daily nationwide.

“Regulated entities and others routinely rely on agency interpretations that courts have upheld under the Chevron framework,” the brief said.

Justice Ketanji Brown Jackson has recused herself from the case, which means only eight justices will decide. Prior to her confirmation to the Supreme Court, Jackson participated in oral arguments in the case as a judge on the D.C. Circuit.

The case granted Monday would likely be argued sometime in the Supreme Court’s next term, which starts in October, and decided by the end of next June.
Previous challenges

In a 2021 oral argument in the case American Hospital Association v. Becerra, the trio of Alito, Thomas and Gorsuch questioned whether Chevron should stand and what to replace it with.

The court ultimately did not address Chevron when it ruled against Medicare on a drug pricing program last year.

The court last year also advanced what it called the “major questions” doctrine in analyzing federal rule-making in a case known as West Virginia v. EPA. There, the court found that Congress must be explicit when giving a federal agency power to address issues of “economic and political significance” through rule-making.

Congressional Republicans have targeted the doctrine in recent years, including a bill that passed the House in 2017 that would have overturned the Chevron case. That measure did not advance in the closely divided Senate.

Additionally, skeptics of the doctrine have urged the Supreme Court to overturn it, including Sens. Tom Cotton, R-Ark., Marsha Blackburn, R-Tenn., Kevin Cramer, R-N.D., and Ted Cruz, R-Texas, who filed a brief in a case last year over veterans benefits that the court ultimately declined to take up. The group said agency assertions of the doctrine have “undermined its legitimacy.”

“If Chevron requires courts to abdicate their own obligation to adjudicate legal questions by elevating an agency’s views over Congress’s intent to favor veterans, then it patently violates the basic structure of our Constitutional design,” the brief stated.

https://rollcall.com/2023/05/01/supreme-court-to-decide-major-case-on-federal-rulemaking-power/

There are times when people try to manipulate others into using a microscope when a telescope is what's needed.

Supreme Court to weigh key case on government’s power to create regulations

WASHINGTON (AP) — The Supreme Court said Monday it will decide whether to jettison a decades-old decision that has been a frequent target of conservatives and, if overruled, could make it harder to sustain governmental regulations.

The justices agreed to hear an appeal that takes aim at a 1984 case known as Chevron. It involves the Chevron oil company and says that when laws aren’t crystal clear, federal agencies should be allowed to fill in the details. That’s what agencies do — on environmental regulations, workplace standards, consumer protections and immigration law.

The court’s conservative majority already has been reining in federal regulators, including in last June’s decision limiting the Environmental Protection Agency’s ability to regulate greenhouse gas emissions.

But Chevron has been one of the most frequently cited high-court cases and a decision limiting its reach or overturning it altogether could dramatically limit the discretion of federal officials to regulate in a wide range of American life.

At least four conservative members of the court — Justice Clarence Thomas, Justice Samuel Alito, Justice Neil Gorsuch and Justice Brett Kavanaugh — have questioned the doctrine. Gorsuch, as an appeals court judge, noted that court decisions “permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design.”

It takes four of the court’s nine members to agree to hear a case, but the court as is its custom did not reveal the vote breakdown.

One wrinkle in the current case is that only eight justices will participate. Justice Ketanji Brown Jackson is not taking part, presumably because she was on a panel of appellate judges that heard arguments in the case when it was at the U.S. Court of Appeals for the District of Columbia Circuit.

The court will not hear the case before the fall. Last week the justices finished hearing arguments for the term that is expected to wrap up in June. They will spend the next two months issuing opinions before taking a summer break.

The specific case the court agreed to hear is part of a long-running fight between commercial fishing groups and the federal government over who pays for data collection and regulatory compliance. It stems from a lawsuit by a group of fishermen who want to stop the federal government from making them pay for the workers.

The fishermen involved in the lawsuit harvest Atlantic herring, which is a major fishery off the East Coast that supplies both food and bait. Lead plaintiff Loper Bright Enterprises of New Jersey and other fishing groups have said federal rules unfairly require them to pay hundreds of dollars per day to contractors. Lower courts have ruled against them.

The case is Loper Bright Enterprises v. Raimondo, 22-451.

https://www.pbs.org/newshour/politi...-governments-power-to-create-regulations

Nobody punted on anything.

And of course you went and Googled for things that meet some inner criteria.

So YOU tell me, in your own words, how this will ore " unbridled capitalism?"

You made the contention, you explain it.

I already know how to use Google and read articles about stuff. I have also read the writ that was granted.

It's self explanatory. You know it and I know it. It will set the precedent to undermine many government regulations moving forward giving business the right to override many regulations to their benefit. Including but not limited to trashing our environment and exploiting the nations resources. Like I said, you know it and I know it.

I knew about this case well before you posted about it. And when you did you gave no source, kept the information you wished to reveal very limited and did nothing to address the long term ramifications of such a case. You aren't fooling anyone here.

I don't know a thing about this particular topic. But.............Capitalism over Socialism!

And yet, no I don't know it, and don't speak for me.

I know that agencies step outside of their legislative remit to make regulations that are enforced as law. Removing Chevron will not suddenly mean that these agencies cannot make regulations. I also know that agencies make rules that are beyond their remit and then they have to be removed via a slow crawl through the courts. Limiting Chevron does not give any business carte blanche to ignore or remove any regulation they don't like. That is a preposterous idea.

Regulated capitalism over unbridled capitalism. Go back and read how things were in the 1920's and 1930's as a reference as to the difference. It's not an all or nothing proposition as you make it sound. But then you didn't post that to actually add anything to the conversation did you?

So here is the bottom line.

We need to understand the concept of unintended consequences of the proposed outcome.

Unless the government legislation is totally unambiguous, which is in of itself an implausible notion, the agency is given the ability to provide an interpretation that it believes is a reasonable interpretation of the legislation.

If an entity disagrees with the interpretation of the legislation, they have two options, 1) ask the court to rule on the subject matter, or 2) ask Congress to change/clarify the ambiguity. The overwhelming number of cases proceed to option 1, because option 2 is far more difficult.

If you believe that Chevron is wrong, then everything that has ambiguity has to go back to Congress, and then Congress will be saddled with figuring out the solution for everything that is ambiguous, and will be drawn into battles as to if there is ambiguity or not. That wont work very well, will it?

I never made it sound like an all or nothing. You still struggle with the word "limit" I see.

I actually did add, I added the conversation to the forum. I added the link to the docket. I added my own thoughts about it.

You made your usual claims and google results and acted like you some how, once again, wiped the floor with someone while not really saying anything original or being productive. You came for the fight and the fight you will do.

You just quoted a post which was a response to Vers and not directed at you whatsoever. This is what happens when you're trying too hard.

I realize you can't understand that you weren't the only one who knew about this case until you posted it. It's that superiority complex shining through again. I knew and had read up on this case well before you posted about it. I knew the intentions and ramifications of the case before you posted it.

And your argument? "But google!"

That happens on message forums, that's how they work. One would have thought you would understand that basic principle by now, since you love to use it as a "gotcha".

Yet it was your claim in your post that "I never made it sound like an all or nothing." When I never claimed it was you that did. Hmmmm..... Yeah, I understand how this works.

The Loper case is about regulation. This is why the unbridled capitalism versus regulation discussion was brought into play.

The Chevron issue is about the ability of an agency to interpret legislation that involve regulations.

Congress passes laws, the executive branch administers the laws passed. Those who disagree with the interpretation administration of often claim "administrative over reach" or need to "reign in" administration of the laws passed.

The alternative is that everything has to be done by Congress, and that is a far worse scenario.

If the executive administrators do not have the ability to interpret law, laws have to be explicit when passed. That will ultimately result in cases where unbridled capitalism will result simply because laws by their very nature are not 100 percent explicit. Sometimes that is intentional, and other times it is not.

Limiting Chevron does not remove the ability for the executive to promulgate regulations. Congress, at times, gives broad powers to the agencies. At times they get a more limited scope. For instance in this case, the plaintiffs argue that the NMFS requires, without statutory authority, that they pay for the monitors that are placed on their boats. They are required to pay the salary of the government monitor solely because the agency says they must. Congress allows for the monitors through MSA, but does not authorize the salary to be paid. This, to me, seems a burden to the plaintiffs that was not intended by congress. Limiting Chevron would not limit the ability of NMFS to monitor fishing as congress expressly allowed them to do so.

This will open the door for every detail in all legislation which wasn't directly spelled out by congress to be challenged in court moving forward. A mountain of court cases will be filed if this case is decided in favor of those fishermen. Every loophole and detail not written directly in the legislation will be exploited.

This really falls under the category of unfunded mandates. This really is a budgetary consideration.

If Congress passes a law and does not fund it, the funding has to be obtained through the party being regulated through fees. Now, this issue does not directly effect me, and I am not making a living though commercial fishing so I don't want to government paying for inspectors unless Congress is funding it.

Now, we can raise the question as to if monitors are reasonable regulatory interpretation of the legislation, but a user fees are common, see USDA.

It is a cost of doing business, and with regard to the overall economic impact, here is the gist, I don't think both of these can be true.. From the pleading...

"The Magnuson-Stevens Act (MSA) governs fishery management in federal waters and provides that the National Marine Fisheries Service (NMFS) may require vessels to “carry” federal observers onboard to enforce the agency’s myriad regulations."

"the MSA caps the costs of those salaries at 2-3% of the value of the vessel’s haul. The statutory question underlying this petition is whether the agency can also force a wide variety of domestic vessels to foot the bill for the salaries of the monitors they must carry to the tune of 20% of their revenues."

Is it 2-3% or 20 percent? Both can't be true. And it is the question being asked. In the same sentence. My interpretation is that the number is 2-3%. Is that per trip, or is that over a year? It is not my problem if the commercial fisherman is not very good at his job. Or if there is a really good trip fishing, it the cost of NMFS is 0.1% of the value. Can I get my money back for the lousy time out?

Fun thread, eh, Frank?

So why are you in favor of unbridled capitalism? Never mind -- we all know why. lol.

I'm just here for the good times.

Me too! See, we have something in common after all.

It's not about eliminating oversight. It's about limiting the powers of that oversight.

The problem is those oversight rules change at the whim of the regulating agency under the umbrella of an undefined law.

I know you understand the precedent this will set and the very real and likely consequences of it. While you're correct as it applies to this single case in and of itself I think we both understand the long term impact of it.

Thanks. I also think you understand the impact of the case. I don't think you want agency's being able to set rules that are defacto laws. You can't vote for any of these people setting the rules.

You may like the rule in question here, but sooner or later there will be a rule with which you don't agree. Then what?

There are rules I don't agree with now. And I actually side with the fishermen here if this case would only impact them. But the problem is it won't. This will open the door for any business or industry to challenge every regulation not "specifically spelled out" in legislation. And I think we both know most legislation leaves the door open to challenge most regulations because the details are certainly not spelled out.

So it's not actually this case in and of itself that bothers me. It's more about the long term ramifications involved depending on the decision.

If you are in favor of "agencies" being the law makes of whatever political party holds the presidency, you might want to reconsider. Your person won't always hold the office.

I can say with 100% conviction that I would hold the same opinion no matter who was in office. Elected officials make laws, not appointed officials.

I really have nothing else to say. Either you agree with me or you don't.

The door is already open for anyone to challenge any regulation. That is part of how things work now. This suit would limit the ability of regulatory agencies to simply says "cause we said so" when challenged.

There is , of course, other recourses to this. For instance those that were elected to enact laws could actually enact laws instead of punting to a regulatory agency to do their work. That would be a novel idea I am sure.

They are "doing their work". It's odd how depending on the topic you site how impactful setting precedent is moving forward in terms of impacting future court decisions yet ignore the very same thing on a different topic.

It's odd how a published SCOTUS decision means nothing to you but a docket without briefs is already decided and will be some major shift in how the government works.

You really just need to fight about stuff.