In what is considered by many people, a
landmark decision, the supreme court last week.
Overturned an important president,
president. It's 19 84 Chevron doctrine.
That doctrine in the words of chiefs
chief justice Roberts who wrote the majority opinion
that overrule Chevron.
That doctrine, un quoting the chief justice, quote,
sometimes
required courts to defer to permissible
agency interpretations of the statues those
agencies, administer.
Even when a reviewing court reads the statute
differently.
Close quote. That's from the his majority opinion
and now in other words, like, putting it
in my words, the Chevron defer meant that
in some scenarios.
The courts had to accept. They had to
defer to a federal
agencies
interpretation of the law.
Even when the court may have had a
different
interpretation of the law.
So the questions today are is the overturn
of Chevron a good thing,
and how good is the reasoning
contained in the decision, both from Roberts and
the justices and the majority and from Justice
C in her descent.
Welcome to new idea live, the podcast of
the Ina rand Institute.
I'm on Car senior fellow and Ari and
joining me today to discuss these questions is
Adi D. A former student in Ari
education programs, and today, an attorney at the
Pacific Legal Foundation, who specializes in separation of
powers issues and who wrote and make us
brief in this very case.
Hello, Abby.
Hi, On carr. Thanks for having me.
Yeah. And I'm really glad you could join
us. Today. So I thought we'd start off
with... So you're... You were on the side,
and I think your brief words on the
side of urging the Supreme court to overrule
Chevron.
I thought you could start off by telling
us
how you... I quoted a little bit from
Justice Roberts character characterization of what Chevron defer
meant.
How you think about it?
So what is it that has been now
overturned or overrule?
So the chevron doctrine which,
was,
which came out of the decision in 19
84, which was written by, justice
Stevens,
is a doctrine of,
judicial
application, is how
how I see it, because what it does
is as you quoted the chief justice
opinion from low bright, it
requires judges to defer
to the
interpretation of statute offered by officials in the
executive branch.
And and it's it's it's a shock to
the system in the sense of... Or it
was a shock to the system
because, it it
it violated the constitution
separation of powers
and checks and balances
on a really a fundamental level.
Because courts if anything
in chief justice Robert's
views that have been expressed in some earlier
decisions,
must act as neutral decision makers
without fear or favor
granted to any particular party.
But the Chevron defer doctrine
required courts to put a thumb on the
scale in favor of the government
and against the individual. So in that sense,
the courts really ab their role as neutral
objective decision makers
when a proper case is presented to them.
And, obviously, last week, the supreme Court overrule
the Chevron doctrine
And and, O, I think you start at
the right place when you say there are
really 2 questions or 2 ways of looking
at.
The decision that we got in low per
bright? 1, is it a good conclusion? And
is it,
are the reasons provided by the justices, good
enough, and I'm looking forward to sort of
talking through that.
Okay. Good.
Yes. And I I definitely wanna spend a
lot of time on the actual decision and
its reasoning because I... The tendency... When I...
Watch things in the media for supreme court
cases. Is the focus on the decision? And
then what they speculation about what the consequences
will be
down the road now for for legal cases,
But they don't spend a lot of time
thinking or are arguing
when they have experts on. So
to to sort of analyze. Was it actually
a good decision. So I wanna spend some
real time on that But
let me ask you this. And as I
said in the intro, you focus on separation
of powers issues and you brought that up.
In in
in your
description here of Chevron.
So
part of the way I think about why
this is
a very consequential
issue,
is that it's
this kind of issue is very important when
you have a mixed
economy. So ads... And and the way I
think about that is at
as the government gains more and more power
and control
over people's lives, and and both in the
decision and if people have read outside sort
of commentary
on Chevron that it becomes
especially
important this kind of issue with the passage
of the new deal
legislation, and that was really a significant expansion
of government,
control and government
power over the lives of people and, like,
in all areas of life and business,
work,
employment law, health care, your retirement planning with
social security and all that kind of stuff,
education, and
ka in her descent, makes this point sort
of in passing just the the amount of
power that the government has. This is 1,
a, brief quote from her dissent. Of just
listing sort of things that government now does
on a day to day basis, and it's,
quote, the provision of health care,
the protection of the environment,
the safety of consumer products, the efficacy of
transportation systems,
and so on. And the so on is
a there's a long, which has hasn't even
mentioned education there for instance. That's a long
list. And when a government has that much
control over people's lives. There's a really, really
important issue of, is it
exercising that power
in a legal way. And in a way
that is
at I don't know if it can be
fully
square with the constitution, I don't think it
can, but at least it has the still
an element of real
rule
of law that the government it... 1 can
really think
Yeah. The government is enforcing the law, not
making up the law as it goes along.
And that this... The... As I read the
Chevron doctrine and the... What, like, what's an
issue is
is the government
enforcing a law or is it making up?
What the law
is and that the courts are deferring to,
okay. If that's what the government now of
are in in in this sense
guys, the federal agency says the law is,
then that's what the law is. And there's
a real if we don't look at it
from the perspective of rule of law is,
like, can you as a citizen know what
the law is by looking at what the
acts and legislation and statute congress has passed,
or are you sort of at the mercy
of the federal
agencies
and their interpretation, what they say and part
of in in
the... I I think this comes up, especially
in gorsuch
concur,
that it can change from
when you have different people in the agencies,
what they say the law can change, And
then as an individual, like, have do you
know beforehand, if what you're doing is legally
prohibited, you're not supposed to do this. Or
not. Like that, I took us... Like, that's
sort of in the... That's what's at stake
or what's it at issue fundamentally
in terms of thinking about this issue of
defer? Is that... Would what do you see
it in a similar kind of way? Or
would you qualify that in some way?
So that's that's right because,
because what what Chevron was
doing in 19 eighties was... It was sort
of addressing the phenomenon of
congress sort of riding vague laws.
You know, they'll... They'll... They'll write statute
basically saying,
the federal government officials,
shall make law that is necessary and appropriate
under this new agency that we have created,
For example.
Congress was
was sort of putting things in
in the
discussions that led up. To the passage of
ola law, which we call legislative history. So
putting, you know, individual
legislators
statements in the record.
And
and, basically, that was being used as evidence
of,
legislative
intent what Congress really meant when they... When
Congress put certain words in a statute.
And,
obviously, you know, federal government officials looking at,
that evidence
or looking at those vague words,
would then then
assert,
really un unfair discretion in reading those words,
however, they please.
And and and it it it really sort
of gives you a glimpse into the kind
of,
the lack of respect for consent formation for
for concepts. And, you know, it's really
sort of an interesting glimpse into the
philosophical premises of of the era, you know,
p or what have you.
And and that... That's what was leading
leading a
lot of officials to
to
read vague statute to give themselves
more and more power. I mean, think of
statute that say, you know,
markets should be honest.
What is honesty? What is markets? What are
securities, what are stock exchanges? All of all
of those terms,
we're implicit in the concept of well, you
know, market should be honest, but then
congress was giving up the power to leg
to make law.
To the executive branch when the power does
not belong in the executive branch, and that's
what was causing
causing,
all of these vague laws and, their interpretations
to proliferate it at the federal level. So
Chevron, at least at the time it was
written,
was meant to be pretty much a sleeper
case. No 1 really paid much attention to
it because it was viewed as the courts,
courts way of signaling that,
you know, we we will we will allow
the federal officials to interpret these vague terms...
Because we aren't getting,
really clear statute written from Congress.
And and and that was fundamentally
flawed as a premise or it was fundamentally
flawed as a principle of constitutional.
Because, you know, if if anything, the the
constitution separates the law power from the
power and the judicial power and
the constitution places,
the
power in the hands of congress, not in
the hands of anybody else. The constitution says
all legislative power, not just any power, not
just some power, but all legislative power is
vested in Congress.
And and
I mean, the the sort of incentives or
dis
structure that developed out of Chevron defer is
was pretty obvious even at the time. Of
Chevron
when Chevron came out in 19 84, which
is, you know, it incentivized Congress to write
vague laws it incentivize the executive to be
a vessel
in interpreting those laws to their own ends
and, you know, new admit...
Anytime there would be an administration change. The
new administration
fell pretty
pretty much, you know, un unaffected. In its
ability to interpret those old statute, of vague
statute
to their own purposes.
And and that really really you know, from
from an individual's perspective,
every 4 years,
law is going to change. We don't know
what the lies. We we can never know
where the lies because
administrator has both the power to enforce the
law and the power to make the law.
And that was the system of
an of you know, of government that really
Chevron incentivized and put in place.
Bright, I think needs to be viewed in
light of what what Chevron was meant
meant
to support and what Chevron actually accomplished
as a result.
So let me ask
you list as a kind of summary and
would... If if you would add anything. So
in terms of... The what
impact and consequences
Chevron had. So it...
Part of what you were saying is it
incentivize
Congress
to write vague laws.
Presumably because it's easier to pass Vague laws.
I'd like to get agreement when people don't
even know quite what you're agreeing to
and then
pumped it to the executive branch, you figure
out the details and and in that sense,
the executive branch is not.
Enforcing the law
anymore, it's making the law, and it's it's...
And and in that sense, it's
taking power away from Congress. So it incentivize
congress to write vague laws,
that in turn incentivized
federal
agencies to claim more and more power because
if it was vague, it's a kind of
reasonable,
permissible
interpretation even if not, the best interpretation of
the law. But as long it was permissible,
the courts were supposed to defer to that.
So it incentivize
them to claim a lot of power,
you didn't say this, but then this is
part I... I wanna ask if you would
agree with this.
The consequence for
individuals is you would much less...
It you would be much less likely to
challenge
federal
agencies in court, thinking, you're going way beyond
what the law says
because the courts... If they're def... So differential
to federal agencies, you're likely to lose that
case,
And so you don't even bring it in
the first place. It's it's not that you
lose it. You don't even bring the case
in the first place. And that... That's a
kind of
unseen
consequence of it that 1 might think, well,
but you still have cases but all types
of cases that maybe should have been brought.
Weren't brought because the... Everybody knew that the
court would be differential to whatever the federal
agency, however they interpreted the statute. So would
you say what... Is is that a third
con... And I'm interested,
maybe to to before now, we'll turn to
the the reasoning in the decision. But what
are 1 are 2 examples that you hold
sort of as... Like, these are paradigm
examples of what Chevron meant in actual practice.
He brought it 1 about markets must be
honest. But do you have a a few
of those of how you think like that,
if you wanna get it more concrete. This
is the... What chevron meant in practice.
Sure. So I... So I think
you're you're right about sort of the third
concert ones that you described.
You know, many, many many cases were
were simply not broad because you knew there
was there was this doctrine of defer
where
court where Chevron essentially had said, you know,
whenever we have
a disputed
interpretation, you know, an individual is interpreting, looking
at this statute and trying to organize their
affairs to the best of their ability.
But there's always going to be a federal
bureau that is going to interpret a statute
in a different way. And there is no
wave. For the individual to convince the court
as to why it makes sense for the
individual's
interpretation to control
that's the that's the sort of, like, bias
or systematic bias that
that the majority opinion and the concur opinion
from gorsuch search. Talks about in lo bright.
So that that definitely has been has been
the
the word on the street so to speak
for the past 40 years is if you're
going to bring a case,
be prepared to lose because
you know, there there's is this bias in
favor of the government
interpretation, thanks to Chevron.
So in terms of,
real world consequences. I mean, we see a
lot of vague or vaguely written statute,
relating to environmental protection, you see, you know,
the clean air act or the clean water
act. It's it's sort of,
the the basic idea is the environment needs
to be protected.
And the environmental protection agency or the Army
Corps of engineers
can can make all manner of necessary decisions
to protect the environment.
And consider what what sort of
impact that V has? I mean, you have
you know, farmers or a or a sawmill
or a a woodworking workshop, or simply a
family that is trying to build a home
on
on a plot of land that is close
to a close to you know, a river.
All of those all of those
individual decisions are now going to be oversee
and regulated by some federal official. Is the
is the
individual's decision,
harmful to the environment. Well, who is to
say. You know, it's the federal official that
has the final say that, and the courts
with this idea of expertise or efficiency are
going to defer to the federal officials
interpretation no matter what because it is a
permissible
construction of the statute. And this statute gives
gives the federal officials a tool,
protect go and protect the environment
and
obviously, the federal official is going to use
that tool in in any way that the
films
deem reasonable.
And that has been the real world impacted.
It has... You know, there there haven't... Been
many industries that have sort of
subs assumed or assumed that's the cost of
doing business is to appease the federal regulator
as opposed to,
you know, sort of looking at law in
an objective way.
And, you know, some some industries have built
that into their,
you know, business model. That's just the cost.
You know, you have to convince a federal
official that you should be allowed,
you should be permitted to build a house
here or you should be permitted to
you know, continue
your Sawmill mills activities or your farming activities.
So it it turned turned to what we
knew as natural rights and rights of individuals
into permission slips,
given by government officials to you before you
could... You could actually exercise your rights. And
and that that was a significant
departure from from,
what we know American revolution stood for.
So that... So those are some of the
real world consequences and as as you probably
can,
discern they were massive.
Yeah.
And,
1 way of thinking about it or 1
way will be... Often put is in terms
of thinking about rule of law, you're going
from
rule of law to rule of men
the more and more, it's just... I have
to win the approve or favor
of some particular bureau democrat who happens to
be in office now, and overseeing this part
of the country for say environmental laws, then
it... It's much more... It... This is a
rule of men, not rule of act rule
laws. It's sort of the sem of the
rule of law, but it's not actually that
in practice. And that's 1 of the... 1
of the ways of holding that that it's
a major issue for what the structure
and division of powers
is in our
constitutional
Republic.
Okay. So let's turn to...
So the the this decision, chief Justice Roberts
writes, the majority,
opinion, there's a concur
brief concur from Thomas, a lengthy 1 from
gorsuch, and then Ka writes the descent in
which so to my aurora and Ja join.
If we start with the majority opinion, and
I'll, I'm interested just you... So your overall,
what you think is good in it, what
you think is not, but I have... Here's
1 particular question as well.
How much do you think the the chief
justice
opinion
is focused on the issue of separation of
powers? Because Thomas's
concur is
the way I read it, but I might
be reading it wrong is it's sort of
I wish the majority of opinion had also
talked about separation of powers and overturned it
on this these grounds.
Because it's another and the most fundamental way
in which Chevron
is
unconstitutional. The chevron difference, is on unconstitutional. So
is that a right reading of it that
there seems to be, like, in some ways
that Roberts is ser
guarding around the issue of separation of powers,
but it's never
mentioned explicitly. It's only mentioned explicitly by Thomas
in his concur. So... Yeah. So the so
based a question of how do you think
of the the actual reasoning in it and
since you specialize in issues a separation of
powers. Particularly from that aspect. How do you
see it?
So
the chief justices opinion really...
Is is a mixed bag. I mean, it
it reaches the right conclusion, but, you know,
the the reasons
for reaching that conclusion aren't really
fleshed out in the opinion. And there there
there are
good reasons why the court to do that
to, you know, to garner a majority,
there there's
some some
understanding that you have to address
the arguments in Chevron and sort of debunk
those arguments or sort of show why
why what was said in Chevron is wrong
to then say that Chevron should be overrule,
sort and go no farther than that.
I mean, that that really seems to be
the sentiment of of the majority opinion is
Yeah. You know, I I... As the majority
author, I need to show why Chevron was
wrongly decided, and here are the reasons why...
Chevron was wrongly decided,
and sort of leave it at that. But
but really, I mean, the the
just as Thomas, I think talks about this.
And gorsuch search, I mean... It it's sort
of
implicit in some of the premises.
In the way that justice gorsuch wrote a
concur opinion.
It it... The court definitely is aware of
you know, the separation of powers, principles, the
structural
constitutional principles,
that are meant to protect individual rights against
government en,
so the the majority definitely is aware of
chief Justice course... Excuse me Justice Roberts is
aware of that, but it doesn't come out
in the
majority opinion.
And and, you know, when when you read
the opinion, it sort of
hangs everything on, on this statute called the
procedure act, which says
that courts shall interpret all questions of law,
both, you know, statute victorian
constitutional. So I I think what's happening in
the majority opinion is,
the chief justice is g toward
a statutory reason as the bare minimum reason
why
the Chevron doctrine of defer was wrong and
not taking that further step to explain why
as a
constitutional matter,
the Chevron defer doctrine was wrong.
And and that is may maybe a gap
in the, in the majority
opinion.
And,
just as Thomas on the other hand, you
know, he has...
In,
some previous cases, like the Baldwin versus United
States case, which he cites pretty extensively in
his concur
He really went through the
constitutional separation of powers reasons
as to why
it it is wrong for courts to defer
or be biased in favor of the federal
official and biased against the individual.
And that... So he he he talks about
how that really flips
tips the scales of justice
in favor of the government and against the
individual when the constitution written
to to, you know, protect the individual from
government en engagement of the individual's rights.
And, you know, it would have been
if if the chief justice had wanted to
provide the, you know, the constitutional reasons,
I think he could have done that. We...
I I can't imagine
justice as Thomas or justice his gorsuch search.
Not joining,
those
those opinions, but I think that would have
given more
ammunition and to the descent written by Justice
C to then punch holes into,
into the you know, the underlying fundamental
principles that are derived from the constitution and
our structure of government.
And And historically, that has been interesting because,
you know, if you go back to, let's
say,
Robert Bo confirmation. Hearings, you know, the the
the the idea that the constitution is pretty
much an ink b is is a premise
that
that is prevalent in in
the thinking of many justices on the Supreme
court.
Again, obviously not a partisan issue. It's not
about, you know, which... Precedent appointed with justice.
But that understanding that the constitution
doesn't really address
some of these fundamental principles or doesn't, you
know, fails to give the reasons for the
existence of the kind of structure
that we have,
is pretty prevalent and I think there is
some hesitation from
from justices, you know, all 9 justices really
to
to peg
the reason for ruling Chevron on the
constitution alone. So I think that's that's what
you see when chief justice as, well, you
know, we are peg the reason as this
statute that that Congress enacted as opposed to
having sort of, like a full throat defense
of their a current position in low b
based on the constitution.
So let me ask a follow on that.
So you brought up because it it features
heavily in
both the
Robert's
opinion, and then Ka descent the
Apa of the administrative,
procedure act, which it was a 19 46.
Act, I think passed by Congress.
And
so the
Robert's reading of that is that Congress is
charging
the... Or, at least is how I
understand what he's... Sorry. That
in that act, congress is charging the court
as
you have
and and
and sort of must retain.
Final
decision making about what the law is. So
you can't... Defer
to a federal agency and say, okay. Their
are interpretation of what the law is. That's
what we're gonna go with. You can only
do that if you agree with the federal
agencies interpretation. But if you don't agree with
it, then you can't defer and that that's
what this act
charges
Congress...
Sorry. Charges the court with and that... He
makes a point of saying in the Chevron
so the 19 84 case, they never even
deal with the administrative.
This Apa act and say why their this
difference or of this kind of test is
compatible with that, and that that's a major
flaw in the Chevron
decision that of why was wrong from the
start because it never
never tries to reconcile itself with the Apa
app.
But a way of
reading that kind of argument, and it might
be an un charitable reading, but so this
is the question of,
that if Congress had said or if they
pass a new
statute that says,
no. We want the federal
agencies and the it it... I wanna talk
a little bit about this, but it's particularly
supposedly in cases that where the statute is
ambiguous
or sometimes it will put as silent. So
it doesn't seem to speak to that particular
issue. That then
the
agency can decide. And if
Congress passed something like that, then
there's a question of then would the courts
have to defer,
and that seems like a separation of powers
issue that, like, does congress even have the
power
to issue a statute like that saying, okay.
And this issue, the the courts don't get
to decide what the law is, the federal
agency. Get. So there's that kind of... You
can read... As I say, it may be
an un charitable reading, and I and I
have some reasons why it might be un
charitable, but that's a way of say... Like,
okay. If get it just so happens Congress
passed the Apa, and it's telling courts to
make the final decision on what the law
is. But if they had passed something different,
then the course would lose some of their
power, and that seems like a separation of
powers issue.
That's right. And,
I think that's that's that's the sort of,
flaw in the premises of the majority opinion.
Because, yeah, it does it does
allow or it it does contemplate the possibility
that Congress could come in and,
say exactly what Chevron said,
and then the courts will simply have to
apply that. But what
what that argument, I guess, fails to fails
to contemplate or fails to sort of, like,
c 2 steps ahead
is is, you know,
what does it mean
for an article 3 judge, a federal judge
to judge.
Right? What what is the judicial power? And
the majority opinion does not really
really get into that except to say that.
Well, you know, the principle of that a
court should say what the law is.
Is comes from Mar versus Madison, which is
the famous case from 18 o 3,
where, which has been you know, cited
really hundreds of times for
the proposition that courts have the core judicial
power that not even congress.
Can take away from the courts.
And and so the majority of opinion does
cite
Mar versus Madison and, you know, talks about
the history
of,
how that,
Mar principle and
applied consistently
throughout the 200 plus year history of the
United States except for the Chevron experiment.
So he... So there's there's definitely some flavor
of,
or some understanding as to the role or
the core functions.
Of the judiciary, but, again, there isn't a
full throat,
argument in a port of that. It's sort
of a almost hidden in the way that
the majority talks about Mar.
Yeah. That... That's in in my reading of
it, the... You put it as is hidden.
That's that's how I experienced it in reading
the majority opinion.
So let me ask this...
Because it's again, it's an issue that is
at issue. So it at play in the...
The majority opinion and the descent, which is
the issue of
thinking about statutory
interpretation. So interpretation of what the law, means.
What is the law that can't congress has
actually passed and now needs to be
enforced
that
the issues of
ambiguity or silence
in the statute,
how should a court
proceed? And
the
if I understand. Right, The Chevron
doctrine and the defer is only in the
case
where the laws not clear or
crystal clear. If the laws is crystal clear,
then it just means what it means and
the court and the agency... Like, the court
should apply that to the agency. The agency
is trying to go around that, it can't
do that. But if
the statute or the law that Congress has
passed is ambiguous in various ways. And you
were saying earlier, they were incentivized to write
it ambiguous.
If it's ambiguous or just silent on some
issue.
In
robert's opinion, it's
it's still the court's
responsibility
to come to the single best
interpretation of what this statute means
with its annuities or and silence and
the in
descent, it's
But if... It, I put it something like
this. If it's
ambiguous or silence, there's not a single best
interpretation. There's...
Interpretations plural, and that's where the difference occurs
that it's... If you can interpret this at
5 different ways, you allow the agency to
do that. And there just isn't a single
best interpretation. How do you think of that
issue and in particular, in I mean, you
have a much more familiarity with the actual
legal cases where this is at play in
and in issue.
Yes. So I think... I mean, that was,
I think the the most
interesting debates that occurred.
Between the competing opinions that we saw in
Low bright. So I think I think there
are 3 arguments that play. 1 1 is
you know, there are there are certain
presumption
in the law, and that's how, you know,
language and cognition functions.
And and and that... That's where the majority
and gorsuch search are coming from is, you
know, we we obviously have
certain presumption. 1 of the presumption, is, for
example, that if there is ambiguity, then, it
is resolved in favor of the individual and
against the government,
because that is why we have governments established
among
among men. And and so
So then Ke says, well, you're trying to
fight
1 presumption with another presumption.
So she says for example Okay. There's the
rule of Len. So if if let's say
there is a statute that says, if somebody
will fully or reckless...
Drives and causes injury to someone, then that's
a crime punishable but 2 years in jail.
And the... Let's say, the prosecutor, which is
the executive,
is trying to prosecute somebody, and all they
are able to prove, is that somebody drove
ne on the streets. The statue just says
will fully or reckless the statute is, you
know,
ambiguous or silent as to whether ne conduct
rises to the level of the crime that
is defined
And in those circumstances,
the presumption or the rule of len,
the way it functions is
that, quote the benefit of the doubt, to
the individual. So if all that the government
is able to prove is negligence
and not reckless, which is a higher sort
of mental state or a more sort of
focused mental state than merely ne.
Mental state, then, you know, the government doesn't
win. The individual goes free there may be
there may be other statute, for example, there
may be civil
that are applicable in the situation, but it's
not a crime to ne drive and injure
somebody.
Because that's what the statute says.
So so there... There's this interesting give and
take or back and forth between
you know, Chevron,
itself was a presumption. The presumption was if
there is an ambiguous or silent statute,
then the government wins.
Whereas, you know, gorsuch search comes in and
says, well, actually, historically speaking, the presumption was
the opposite.
Is when there is an ambiguous or silent
statute, then the individual when the government loses.
And, you know, we are simply returning back
to applying that historically grounded
presumption as opposed to applying this new presumption
that Chevron created.
So then
just as K comes and says, well, okay.
Yeah. We... I I understand you're just fighting
1 presumption by another presumption, and that's where
we of saying, well, You can't really fight
bias with bias. Right? You know, Chevron, if
anything
was a doctrine that,
required judges to be biased in favor of
the government. And now you're saying, okay, now,
there is something in the constitution. You won't
tell us what that requires us to be
biased in favor of the individual.
So... Yeah. That's just bias versus bias, I...
That isn't persuasive to the dissent.
What about...
Expertise and what about efficiency?
So just as C goes on to say
that, well, you know,
these agency officials, federal officials are the experts.
They know what honest markets are. They know
what what needs to be protected when they
have the mac congressional mandate to protect the
environment.
They know what,
what types of,
immigrants are repeat offenders or there is an,
you know,
some intent to not comply with the nation's
immigration laws. So they are the experts. Why
don't you allow those experts to
to decide,
these issues, and then, neil, the court's job
is easier under Ka worldview because the courts
simply have to see. Okay. Well, I may
have reached a different decision, a different conclusion,
but the federal officials decision
is reasonable. It's permissible
I'm am going... To allow the decision to
stand.
And the the the problem with that is,
you know, that that doesn't
to recognize
that
the the federal official is not the only
expert in the field. And, you know, the
chief justice and this majority Talks about well,
you know, expertise really depends on what fields
you're looking at or, you know, what's what's
the context of the expertise I mean, is
not the case that courts do not have
access to expertise. Right? I mean, courts have
the the sort of basic Idea of of,
fair trial in a fair tri,
means that a courts have access to expertise.
You know, the government can
can bring experts to testify
the individuals can bring the experts to testify.
So court, it is not the case that
courts do not have access to expertise. And
is not the case that only federal officials
or have a monopoly on expertise. Because if
anything, the the core of judicial power
requires courts to be experts in interpreting
the law because that that that expertise comes
from
a deli deliberate process and
process that requires courts to
look at concepts where what they are and
see, you know, what what what reference are
really
encompassed within particular concepts, or particular words that
Congress has used in acting. So so there's
this interesting mixture of, sort of presumption versus
presumption and
and expertise versus expertise or, you know, categories
of expertise and efficiency that that is really,
you know,
is is a good discussion to have, and
I think we'll continue to see that
but I think it it ultimately is missing
the reasons why the constitution has deliberately separated
the powers. And what it means to judge
what it means to and what it means
to execute the law, and that... That's something
that we did not see in the opinions.
Yeah. I wanna come back to that point
and ask some some follow about some of
the presumption, but first on the issue of
expertise that you brought up.
My reading of it, but I'm curious if
you think
this is un charitable.
Is
it's so
imp to say that the courts don't have
expertise that it's a kind of smokes screen
because
but
maybe there's a difference between when you're looking
at this kind of statutory law and federal
agencies. But in the civil courts. I mean,
I know,
I have a bunch of engineers in my
family. When these kinds of cases go to
the court, there...
Extremely complex, there's all kinds of scientific and
engineering issues at dispute in the contract dispute.
Like, if you've fulfill your end of your
contract with someone else that if the court
really didn't have and couldn't get this kind
of expertise
1 would think like all these decisions are...
They sort of just... They're making them up
and that it's... Like, it's almost like they're
guessing because they don't have expertise. So if
you really thought that it would be, like,
a whole system wouldn't work if courts don't
have expertise. So I found it like very
imp.
As an argument that you have to defer
because federal agencies have expertise and courts can't.
But is there a more charitable
reading of that
I I don't think there is. I mean
I I would definitely struggle to think there
is a more charitable reading of that because
So I mean, there's... Well, so there's
there is factual
expertise and legal expertise. There's... You know, the...
We we know from the way that our
sis... Of government
functions
that, you know, the... There is going to
be
to be factual disputes, like, you know, like,
a breach of contract you know where
some engineering firm is trying to prove that
well, actually, we satisfied the terms of the
contract. And the,
other side is saying, well, actually, no. I
mean, you, you know, here are the reasons
why,
why we feel that there is a breach
because you know, we we asked for,
you know, tax you gave us screws. I
mean, that doesn't help us. So I mean,
you some some factual issues are going to
be easier to resolve than others.
But but but I think I think the
the clue to understanding the chief justice opinion
is because it talks about, there's, you know,
the the agents agencies can develop those facts.
And we have
tools
both in the judiciary and there are tools
that the federal officials can use
to develop that factual bases,
for their respective positions.
So I mean, consider what tools courts have,
you know, courts we have
we have,
deposition,
testimony in court. We have jury trials. We
have rules of evidence and procedure that are
designed. To be fair and put both parties
on an equal footing.
And then compare that to the tools that
the federal official has. You know, the federal
official the tool of investigation they can investigate
whether somebody actually committed a fraud on the
market.
You know, whatever fact, the underlying facts or
elements that the federal government needs to prove
against the individual. They have investigated powers. They
have
the power to subpoena documents or subpoena, a
person to testify.
And those tools are designed
to to
understand or give access to expertise to really
everybody, not just the federal government to the
courts and to the individuals involved in these
cases.
But but what this argument from expertise
that justice Ka brings
does is it it... It's sort of, it's
like a bait switch. It it she talks
about sort of legal
expertise. And says, well, you know,
if if you want to find out what
honest markets mean. You have to ask people
who,
have been regulating this. Securities industry for 20
years because they they know it inside out,
they they are the experts.
If you want to ask about she gives
the example of the of, some Fda
regulation about protein sequences.
So, like, oh, core courts don't...
Understand this medical terminology,
you have to rely on,
the experts and...
Her worldview of experts is pretty narrow and
the sense I said, well, The only expert
she would recognize is the federal officials who
have been tasked with regulating. But, I mean,
that isn't obviously the end of the end
of the... Fear of expertise because you're going
to have
experts in the industry. Right? You're the regulated
party, for example, a pharmaceutical company. It's is
going to have scientific
experts who
able to demonstrate factual
why
this regulation doesn't apply to the particular protein
sequence that this lab has developed, for example.
So so the the expertise
discussion is sort of
intended to off skate rather than clarify.
It is intended to be a package to
really you sort of, you know, start trying
to sort our sort through concepts and, know,
that... That's I think the... I think a
flaw in the descent reasoning.
Okay. Yeah. That's that's certainly
how it came across to me.
The...
So on the going back now, and and
I think to the more fundamental issue of
presumption. That's part as you were saying, part
of what's
in dispute about... And what
between the majority and the descent and what's
proper
presumption. And I think you said at the
end, which I agree with that you can't
think of what presumption and proper
presumption would be,
absent thinking about the wider structure
of the government
and the why there's a division into an
executive
a legislative
judicial branch,
and thinking about checks and balances
and why that was thought important and how
that in practice
would be
carried out.
And
I...
In my reading of the descent, and so
Ka descent, it comes out pretty clearly
the way that she thinks about it, which
is
and
that
govern...
So
if if you have the presumption that you
defer to the federal
agencies
there's a kind of what would justify that
is
we know government has all kinds of powers.
And, yeah. Okay can we have to get
clear on exactly
what those powers are in this
instance. So... But it's... We know it has
a lot and a lot of power and
so let it decide sort of the contours
of that versus if you think
No. The government
doesn't have any power except what's actually and
explicitly delegated to it.
Then it becomes... If you can't find that
it's really been delegated,
it hasn't been, like, the presumption is then
it hasn't been delegated.
Versus the presumption is, know that government has
this power unless we can find it explicitly
it's sort of prohibited to the government. To
have this power. And so so when they
defer to the federal agencies to something that's
permissible,
it... Like, it's in I think of it
as in that wider
context. And she brings up,
I thought 1 of the things in the
descent that's revealing just the formulation. In the
way that she form... It's it's
in thinking, and she calls it.
This is not really
deciding what the law is it's policy making.
And she describes it like that. The task
is... It's this is about sort of the
power of of a federal agency. Quote, the
task is less 1 of cons constrain a
text
then of balancing
competing goals and values,
close quote. And that's the the the policy
making this... Well, I've got to balance competing
goals and values,
and
1 administration might do it in a certain
way, and the next administration does it in
a different way. This is why it can
change from administration to administration And the courts
is supposed to say, okay. That... That's permissible,
we... We're not gonna do anything about that.
Even though the agency's own interpretation of the
laws changing from administration.
Because it's just the variation on how they're
balancing
the... This what competing goals and values. But
there's a real question Like, is that law
anymore? Like and so what is policy making
mean? And and how is that an executive
fun Well I like, why is that not?
A legislative function to make policy.
But she's trying to put it in the
executive branch that that... Like, it's prop... And
that seems like that's, like, core issue in
terms of separation of powers and how to
think of these various branches.
And is that is that how you read,
like, what's part of what's going on?
Yes. And and I think I mean, what
just as Ka is addressing is the consequences
of
the low bright rule.
You know, so she she's trying to sort
of project into the future and sort of
trying to see okay,
have, low bright, which says the
the courts are going to
provide up the best interpretation of the statute.
What does that world
look like? Courts And and, you know, from
from the majority view that word
look looks as follows. I mean, it the
in... Under the low bright rule,
a judge looks at a statute, and and,
you know, the courts are going to be
looking at statute that are hundred years old
statute that are 20 years old statute etcetera
are. Very recently enacted.
All types of statute where if they
encounter an ambiguity
or silence.
All that the courts need to do is
say that, well, okay. You know,
really this statute is hopeless ambiguous
we cannot figure out what this statute means.
There is no best
interpretation of this statute.
And what that permits or what that incentivize
courts to do is then look at the
underlying sort of issue, which is Okay. You
know, congress wanted to make markets honest.
But, you know, what power is Congress really?
Exercising there? Is it the commerce power? You
know, is is it
constitutional under the commerce clause of the constitution?
To, to, you know, for Congress to say
that, you know,
any any financial activity
in some rural part of
the country is going to affect
interested interstate commerce and therefore,
based on that authority to regulate interested commerce
we are,
going to require markets to be honest and
then give authority.
Policy making authority to the
executive branch to decide actually what that honest
this market looks like.
So I think it will...
The world view from the majority perspective is
that will
incentivized course to have an honest discussion of
the underlying issues, you know, what power is
congress really exercising when it's speaking through Vague,
and ambiguous or silent
statues.
Whereas from the world view under the dissent
perspective
is
Yeah. But that's, you know, that's giving too
much policy making power too much control to
the judges to dictate. Who gets to decide
the policies for the nation. And, you know,
it is very practical or it's very efficient
to allow federal officials to
make those policy choices because, you know, the
premise being congress is dysfunctional it doesn't do
anything
nowadays. It, you know,
legislators are interested in sound bites on social
media as opposed to actually doing the work
of drafting statute,
getting majority support, getting them enacted through the
congressional
procedures
presenting it to the precedent
the president might veto the statute and then
comes back to congress for amendment.
So that that pros... That whole process of
making law, is very very
inefficient
according to the descent. And therefore,
it is appropriate for congress to
give its law making functions
to somebody who can be extremely efficient. And
that somebody just happens to be the precedent
and the executive branch.
And that is the system that that Chevron
incentivized that Chevron put in place, and we
like that system because... You know, it's cozy
and nice, it's sort of, like psychologically
understandable.
But what what the descent, fails to understand
is
is is that, you know, the the majority
sort of implicit premise is
no. Because, you know, the
you still have to deal with words that
individuals are reading. Like, common that the common
man on the street is reading a statute
and trying to ascertain
what conduct is legal, what conduct is illegal,
and we have to enter statute. And, you
know, put that common man on an equal
footing in a fair try on a fair
tri you
against the government
so... And and, you know, it it will
lead the courts to have that honest
discussion about congressional powers down the road.
And that... Consequence, I think is scary for
the for the descent because
you know, there there's at least of a
few justices,
And a few judges on the lower courts
that do not want to tackle the the
extent of the powers of Congress.
Because, you know, we we have seen what
happened to the commerce clause. We have seen
what happened to the necessary and proper clause
and the constitution. We see taxing bankruptcy all
coin money, all sorts of, powers described in
the constitution that are given to Congress and
courts have
largely
gotten themselves out of the up trying to
interpret those sections of the constitution. But low
would would flip that and require courts to
go there,
where they have been hesitant so far.
Okay. I'll I'll... That'll be the last thing
I wanna ask you about sort of what
you think of, and I know it's
it's part guessing what are they're gonna be,
now the consequences of this. But just before
that,
the the 1 of the last issues you
brought up.
My reading of this descendant...
The question is is this also you're reading
is
Cad never addresses this kind of rule of
law issue of canon ordinary
citizen,
going about their business,
trying to build a house, start a farm,
can they look at the statute
And even the statute and some of the
decisions that have when when things have gone
to court and say,
okay. I'm... Now I know what I'm doing
is not legally prohibited.
I'm in the clear, and I'm gonna do
it.
Like, so that kind of rule of law
that you know in advance of your actions
is this something that is on the right
side of the law or on the wrong
side of the the law or you have
to wait for the latest
administration and and it's bureau and the federal
agencies to tell you. Oh, no. Our interpretation
of the is you can't do this. And
that... Like, that really destroys rule of law.
And my reading of the descent is it
never tries... It never even tries to address
this issue.
Is that your reading?
Yes. And I I think I think both
the both the majority.
And the descent. And you know, even the
concur to a large extent are skirt around
that issue because because it it is an
issue on which...
I think I think it's
a a lot of justices hold mixed premises
on, And we and we see that play
out in in other decisions that that, you
know, that are decided a certain way
for, you know, maybe the right conclusion for
the wrong reasons or right conclusion for the
right reasons, or wrong conclusion for the right
reasons or, you know, wrong conclusion for the
wrong reasons. Reasons
So so there's there's a mixed bag of
premises that
really, you know,
all 9 justices.
Have in terms of
you know, what rule of law means.
And III...
And and maybe that's that's 1 of the
1 of the criticisms against
the current supreme court, you know, maybe maybe
a future supreme court as well. Is is,
you know,
there isn't really any
any
sort of urgency at least from the justices
minds.
To clarify
the Jury prudential, the philosophical principles,
that animate their decisions. And and you you
see that in the sort of
way that the Robert's court is described. You
know, the Robert's court court is described as
an incremental court, in the sense that, you
know, they'll they'll take the smallest step possible
in
in a certain direction without then explaining
you know, the repercussions of that decision or
the consequences
for other things. And, you know, we, maybe
that's the that's
a practical approach, maybe that's a pragmatic
approach. But but many times what it does
is it inject these,
these
mixed premises or unexplained
or it it sort of
prevents
prevents courts or lower court judges from trying
to figure out exactly what
the supreme Court meant when they said XYZ,
And and and and, you know, some of
that is
is is the way that judging occurs and,
you know, justice gorsuch.
Goes into that. I mean, his his
his
way of this is,
you know, there... There is no such thing
as
you know,
respect for the
methodology used by past judges. So every judge
has to make up his or her own
mind,
in
understanding and applying what the rule of law
means.
And and so it it it it... He
sort of
switches between subject ism and en
to some extent when he's talking about sort
of,
independence of each judge from under judge.
And and then there's
there's the other camp on the supreme court
that
that says, well, okay, You know, this is
this is sort of, like, a very
mechanical
exercise where we are,
we are... We have these tools. We have
tools of interpretation. We have these presumption in
the law, You know, if there is a
veteran involved, and we give the benefit doubt
to the veteran if there is we and
Indian tribe involved we give the benefit out
to the in Indian tribe or all these,
you know, presumption in the law. And we
just sort of mechanics to apply those principles,
that's sort the rule of law means. And
that again, doesn't really
grapple with, you know, the... What rule of
law actually means.
Which is, you know, which is which is
a core judicial function of of of judging.
And, you know, judging isn't a simple matter
of saying,
Okay. You know, the the statute says will
fully and
reckless, but you prove ne there you're wrong.
You know, there there's more to it than
that, you know, the the the more is
the constitute.
The more is the fundamental
philosophical principles.
That animate
animate the
decisions that the judges provide.
So as I said, a a last question,
and
again, looking at it, both from the point
of view of the majority opinion and descent
of now what will the consequences
of the overturn of Chevron
b. So as as you've talked about, you
you think of it... It's... The over overturn
is a good result
the reasoning is a mixed bag, but both
have impacts going forward. So... The... And and
from the
dissent side, that it is 1 of the
things Ka says in the descent, quote, the
majority decision today will cause a massive shock
to the legal system
close quote. And so that's on the dissent
side on the,
Robert's
majority opinion, it's
we're not saying that for for the past
cases that have been decided
based on Chevron,
defer. We're not saying now that all those
are void and or even that they can
be challenged simply
because
they were based on Chevron defer. It's we're
not using that going forward. But it... So
that I I think is trying to address
is this a massive shop? No? It's not
gonna be a massive shop. How are you
thinking about it
operating in this area? What... Are your expectations
now going forward in the next years.
So I think of I mean, there justice
as Ke is trying to get at,
I think a a legitimate concern
is how I would put it. In terms
of, you know, what does it mean for
the majority to say
that,
the
statute, the administrative procedure act,
requires the court
to not differ
to the interpretations of the federal official. So
she's she's getting at this sort of you
know,
this d dichotomy that has developed
over the decades heads
between the star sizes effect given
to statutory
interpretation as compared to constitutional
interpretation.
And I think the chief justice
was very sort of practical in
peg
the majority decision on the statute
because statutory
decisions
are
have a greater star decisive effect
than the court's
constitutional decisions. And the... And and that's the
d dichotomy is, you know, courts courts view
statutory
interpretations of...
Previous courts as, you know, as as stronger
in as having stronger
presidential value because Congress can always come in
and amend,
the statute and thereby overrule the interpretation that
the court has offered previously.
But if the court,
Decides a cons...
Decides the case based on constitutional grounds, then
the only way for
we the people to really amend or overrule
that interpretation is to amend the constitution. So
we as courts, take it upon ourselves to
give less respect or less presidential value to
our
constitutional decisions,
for that reason. So there's there's this dichotomy
between
statutory, star sizes and
constitutional star sizes.
And and I I think you see see
that concern come out in justice Ka
opinion when she says what she quoted, which
is, you know,
what does this mean in the future? And
and and maybe that's why the chief, you
know, I understand why he would peg it
as a statutory.
Decision not a constitutional because then that is
set in stone to a greater extent than
if he had said, you know, this is,
like,
non defer is a constitutional principle.
So he's... He he he did sort of,
like, a smart thing when he did that
because that pretty much
addresses
justice Ka concern. But again, you know, the
there is controversy and debate about
the the nature of,
presidential effect given to previous decisions of the
core. I mean, even even sort of stepping
back from
1 step and, you know, not thinking about
statutory versus
constitutional. I think just as go search,
you know, talks about it Well, actually, you
know, that's part of judging. That's a core
judicial function. We have the ability to figure
out
which precedent...
Which precedent of the court have
have the force effect
that is, you know, to be given more
presidential effect than others. And we can figure
that all of that out in the future,
but because that's the core function of judging,
So I think I think Gorsuch tries to
address
justice Ka
concern, you know, okay. How how how how
is this going to play out in the
future?
You just peg this on the statute,
in sort of the constitution.
But but that that will be something that
will need to be
that will need to be fleshed out certainly
speaking in the future. I think I think
this, idea of,
applying the low bright rule
retroactively to previous,
do you know previous decisions and or applying
it prospective only
is is a legitimate,
you know,
concern for many judges. You know, how is
that going to be applied? And this isn't
the only time that is this has happened.
You know, there are there have been
cases where, you know, let's say, the court
said you have the right to counsel in
criminal proceedings.
A second case needs to go to the
court saying, well, okay. You
introduced a new principle,
are you going to apply that to all
of the cases that we're pending or are
you going to only apply it prospective, and
the cord then has to decide whether it
has prospective applicability or retroactive applicability.
So that that next case is going to
come up no matter what because, you know,
to the extent that Lo bread is a
new principle,
not just an application of the Mar principle,
then, you know, the court will have to
decide that question.
And
so part of the
the
descent is... Painting this as... Or I think,
at least trying to activate in
some people's minds or maybe that even... You
could just say, the media takes it like
this whether or they were trying to activate,
that it's gonna be chaos now
is the I've in part of what you're
saying that this is has happened before and
and the cases are brought and that you
you have a gradual playing out of this.
Is that is that the expectation that you
see or is do you see any
potential for, like, real legal chaos?
I do not see a potential for legal
chaos.
Because... Yeah, that's that's just how gradually
court decides things case by case. And that
is the
fundamental nature of the judicial power. You know,
Congress can come and make generally applicable law.
The you know, they can come in and,
you know, say, okay. Here's the new rule
that's applied to everybody.
But but, that sort of law applies prospective
only.
You know, it it what the... What a
judge does or what a court does is
not make the law finds the law and
Gorsuch talks about that in his concur.
And and and and and that finding of
the law is necessarily case by cases.
Necessarily gradual,
and is necessarily designed to not shock the
system in a way that congress really can
shock the system.
The, you know, the political branches can shock
the system by, you know, creating some massive
piece of legislation. I mean, think of
think of Obamacare think of all sorts of,
benefits plans that are just created overnight.
So...
The political branches Yes are in a position
to
provide that massive shock to the system, but
courts simply are not designed to do that.
So so that concern
about shocked the system coming from the descent
is is really over overblown or. It's really
placing or placing.
The blame on on courts when it should
be placed on congress, and it should be
placed on
congress is sort of,
use of,
muscular
legislative powers that
really the constitution does not grant Congress.
And then that sort of goes back to
the discussion of Well. We will we see
more cases about,
did Congress really, have this power to regulate
commerce, or did Congress really have this power
to create this massive
regulatory scheme or what have you?
We'll we'll see more of those cases. But
again, it will be gradual case by case
as opposed to this massive shock that the
contemplating.
Okay. Thank you. So... Yeah. As I said,
that that's the last major issue I wanted
to talk about. So any... As we close
here, anything
from...
The decision or what you think about it's
aftermath that you think we didn't touch on
that might be important to to bring up
in closing.
So I think the the the 1 thing
that comes to mind is, you know, I
was looking at the
reactions from,
from,
you know, legal scholars
right after the low provide decision came out.
It was interesting to see sort of, the
law professors
being extremely
disillusioned and critical of the low provide decision.
And that is that is an interesting phenomenon
because
because, you know,
I think I think the legal academia is,
I mean, I don't want to sort of,
like, make a political judgment as to you
know, where they lean. But but really, I
mean, the this idea is... About, you know,
oh, the world, the world has turned upside
down.
That that rhetoric, is really coming from the
academics. It's not coming from
lit. So it's not coming from people who
have
actually lit these cases and seen
seen what the thumb on the scale really
means for the individual. So that was really
interesting to see as. A cultural phenomenon of
the divide between academia and practitioners,
and then, you know, may maybe I'll just
say that and leave it at that. Maybe
Okay. Thank you, Eddie for,
joining us today.
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