It's one of the most-cited precedents in U.S. history.
I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”
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- The Federal Reserve raised interest rates 0.25% and indicated it may be the last hike for some time. (The numbers)
- Russia accused Ukraine and the U.S. 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. (The allegations)
- 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. (The release)
- Yesterday, the FDA approved the first respiratory syncytial virus (RSV) vaccine for people over the age of 60. (The approval)
- A bipartisan group in Congress that includes Reps. Alexandria Ocasio-Cortez (D-NY) and Matt Gaetz (R-FL) has released the "Bipartisan Restoring Faith in Government Act," which bans members from trading stocks. (The bill)
Two (very silly) corrections.
Yesterday, we made two small and silly errors in the newsletter. First, I referenced the potential for President Biden to "appoint" a replacement for Sen. Dianne Feinstein. This was a bit of a Freudian slip. Biden can’t technically appoint anyone to the Senate, though I'm sure he'd have a role in picking her replacement. Second, I mentioned in "My take" Feinstein being picked "two years ago" 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.
We were a couple editors short yesterday, and it showed. My apologies.
These are our 82nd and 83rd corrections in Tangle's 197-week history and our first correction since April 26. I track corrections and place them at the top of the newsletter in an effort to maximize transparency with readers.
I'm using tomorrow's Friday edition to get something off my chest that has been bothering me about media commentary around the war in Ukraine. It was a cathartic piece to write. It touches on media bias, the ethics of war, and my position on what is happening right now. This will be a subscribers-only piece, but feel free to share it.
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.
The Chevron deference is named after the 1984 Chevron v. Natural Resources Defense Council case. In that case, the Supreme Court's 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. 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, SCOTUSblog reported.
A divided federal court rejected the companies' 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 Ketanji 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 — Anne Gorsuch Buford — whose work as the Reagan administration’s Environmental Protection Agency administrator prompted the Chevron case after she helped lead 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 won't come 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 are going to examine some arguments from the left and the right, then my take.
What the left is saying.
- The left is worried about this case, and argue that it could invalidate 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 modern 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 "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, Laurence H. Tribe and Dennis Aftergut warned 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 said. "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’ objectives." We've already seen "the hazards of dismissing expertise," like Texas Judge Matthew Kacsmaryk 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 companies’ 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 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 scalpel against the 'administrative state' that they hope to rein in."
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 reach of the government and how large and burdensome these regulations 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 its much-abused Chevron precedent." There could be five Justices "willing to overturn the doctrine or at the 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. "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 (NMFS), an agency of the National Oceanic and Atmospheric Administration (NOAA), 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 Somin said Chevron matters, but not as much as you think.
"While I would be happy to see Chevron overturned, I am skeptical of claims it will make a huge difference to the future of federal regulation," Somin wrote. "My reasons for skepticism are 1) we often forget that the US had a large and powerful federal administrative state even before Chevron was decided in 1984, 2) 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, 3) a great deal of informal judicial deference to agencies is likely to continue, even in the absence of Chevron, and 4) 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."
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I'm genuinely torn on this one, and I don’t have a clean answer.
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 Hewitt points out (under "What the right is saying") there are over 20 million people working for the 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 hoops you have to jump through for the administrative state. The paperwork, the redundancies — it gets over-the-top very quickly.
One fisherman who is impacted by the precedent wrote a powerful piece for National Review where he put 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 in crosswalks. And that ought to be enough. But now imagine that the government mandated you 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, N.J. 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, outearning both the captain and the crew.
Any governmental framework that produces this outcome seems like it might be broken.
I also thought Ilya Somin made a very strong case (under "What the right is saying") about how the Chevron deference creates instability. Many on the left argue that leaving these minute rules to judges will send the regulatory state into chaos, but Somin argues convincingly that the opposite is true: "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."
On the other hand, the outcome of striking Chevron down is perhaps even more unsettling. Quite obviously, litigants will go "judge shopping" as they did in the abortion pill case to find a judge they believe to be sympathetic. 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.
This is why, for a long time, Chevron and the idea of deferring to policymakers with expertise enjoyed bipartisan support. While regulatory agencies like the CDC have gotten raked over the coals in the last few years, I'm much more fearful of our new breed of know-nothingism where everyone with a Twitter account acts as if they have equal standing as experts with decades of training 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 layman court determined those theoretical regulations had enough "broad political and economic significance" for them to be struck down.
There's also something blatantly hypocritical about all this. The right loved Chevron when Reagan was in office because left-leaning judges were rendered incapable of slowing down Republicans’ de-regulatory push. Few legal minds get worshiped 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 that the regulatory state has grown and we have had a few Democratic presidents, 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 Somin 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 minutia to the agencies seems like a sensible 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 Somin's case that the ultimate net result may be negligible. At this point, that outlook might be the most preferable of all.
Your questions, answered.
Q: 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?
— Thom from Falls Village, Connecticut
Tangle: Great question. 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 and we got connected professionally, but I'm about halfway through and 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 manages to tell much about the story of America’s early days. I 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 is an enthralling and challenging must-read.
There are obviously many, many more, but those three were recent reads for me and all seem worth sharing. I try to alternate the books I read (one fun, one political) so I'm not always doing nothing but reading about politics and U.S. history!
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It's halftime of the Biden presidency, and we have a new YouTube video up in which I spend 20 minutes giving a progress report on how things are going so far — with views from the left, right and, as always, my take:
- 40%. The percentage of eighth graders who scored below the basic proficiency level in U.S. history in 2022.
- 34%. The percentage of eighth graders who scored below the basic proficiency level in U.S. history in 2018.
- 500 million. The number of chats people have started with Bing's AI-powered search engine since it launched in February.
- 14,000. The estimated number of people killed by RSV each year in the United States.
- 2026. The year a ban on gas stoves in new buildings will go into effect in New York.
- $92 billion. The estimated loss in tax revenue for California and New York due to wealthier taxpayers moving to states with lower tax rates.
- One year ago today, we covered the Roe v. Wade leak.
- The most clicked link in yesterday's newsletter was Zillow gone wild.
- It's time: 91.7% of Tangle readers said they thought it was time for Sen. Dianne Feinstein to step down.
- One more plug: Go check out our new YouTube video!
- Take the poll. After reading today's newsletter, what do you think? Let us know.
Have a nice day.
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. Slate has the story.
See you tomorrow?
Don't forget, we'll be back tomorrow with a subscribers-only Friday edition. Otherwise, we'll see you Monday. Have a great weekend!
— Isaac & the Tangle team