Thursday, May 4, 2023

Law news chunk: Supreme Court takes up a critically important case

One of the radical right's cherished government hating goals has been to attack the fundamental legitimacy of much of the power that federal agencies have to implement laws that congress writes and passes. Many or most of their laws are incoherent and/or ambiguous. Congress chooses incoherence and ambiguity to hide from accountability in elections. Congressional cowardice and moral depravity forces federal agencies to try to understand what congress intended its slop to mean and write regulations accordingly. 

According to government-hater propaganda myths, the power to write regulations is the alleged evil power of the deep state. Those evil, unelected, socialist, atheist bureaucrat pedophiles are the ones forcing us into tyranny and depravity, not those valiant patriots in congress. Unfortunately, moral cowardice has been a bipartisan thing, but it's usually not seriously bothersome to most congressional Democrats. On the other hand, most Republicans in congress hate government and the power it has to defend the Constitution and the public interest. Thus, they hate the system they participated in building and using to advance their own personal careers.

Yeah, I know. That is incoherent hypocrisy. But like it or not, there is no law that says that politics has to be coherent or non-hypocritical. 

The government-hater propaganda is a sham. The propaganda is almost pure hypocrisy, lies and deceit. This lawsuit strikes at the heart of an actually functioning government that is trying to obey the Constitution and serve the public interest. 

The Hill writes about a case the radical right Republican Supreme Court has just agreed to hear and decide, apparently still in this term which ends at the end of June or early in July. This case could turn out to be a true government killer. The Hill writes:
The justices this week agreed to take up a case that asks them to overrule a 39-year-old precedent that gives federal agencies deference in rulemaking that Congress hasn’t clearly authorized.

That decision could have wide-ranging impacts that scale back the executive branch’s authority to implement certain environment, employment, drug and other regulations when the justices decide whether to overrule the court’s 1984 decision in Chevron U.S.A. v. Natural Resources Defense Council, known as the Chevron deference.

[The Chevron defense] involves a two-part test to determine if a federal agency’s rule is authorized. First, a court determines whether Congress “has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter.”

If Congress was ambiguous or silent, the court must defer to the agency and uphold its action if it was “based on a permissible construction of the statute.”


“I would think it’s the most significant federal case of this era,” said Mona Dajani, global head of renewables, energy & infrastructure at Shearman and Sterling.

“And I would even argue it’s bigger than Dobbs and Bruen. Some people will say Roe, I mean, so that’s how major this is,” she added, referring to the Supreme Court’s landmark decisions on abortion and gun rights.

The test has become a bedrock of administrative law, and judges have cited it in more than 10,000 subsequent decisions, according to research by Columbia Law School professor Thomas Merrill.  
Unlike other federal courts, the Supreme Court chooses which cases it hears. The court’s move to hear the dispute — which required at least four justices to agree to do so — has given legal observers the strongest indication yet that Chevron may be at its deathbed, given past alarm bells voiced by some of the court’s conservatives.  
In a dissent from the court’s 2020 refusal to take up a separate regulatory case, Justice Clarence Thomas wrote that the deference gives agencies “unconstitutional power.”
At present, most of the experts the Hill quotes in that article think that the Republicans will most likely vote to limit the scope of the Chevron Defense instead of obliterating it completely. But, that is what most experts thought about abortion and the Dobbs case and those experts were wrong.

Weakening Chevron will give companies more freedom to escape from federal regulations. The cause of gutting federal agency rule making power is a cherished dream of radical right, brass knuckles capitalist elites in the Republican Party. One can easily see why.

That said, since the goal is to limit power of the federal government, most Christian nationalist (CN) Republican elites are probably neutral to, or approving of, this effort. This attack on Chevron kills secularism that is usually reflected in federal regulations. CN elites want God's sacred law to govern the Constitution and federal rules, not human law. 

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