Jan 23, 2024

SCOTUS hears Chevron doctrine argument.

SCOTUS hears Chevron doctrine argument.
Photo by Knut Troim / Unsplash

Plus, how did we get Trump and Biden again?

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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Today's read: 12 minutes.

🐟
How a case about fishermen could upend the administrative state. Plus, a reader asks how we ended up with Trump and Biden again.

Quick hits.

  1. The New Hampshire primaries take place tonight. On the Republican side, former President Donald Trump is in a head-to-head match-up with former South Carolina Gov. Nikki Haley. On the Democratic side, President Joe Biden is expected to win via write-in votes because he is not on New Hampshire's primary ballot after the Democratic National Committee designated South Carolina as the first primary state. (The primary
  2. Israel has proposed a deal to Hamas that would include a two-month pause in fighting in exchange for releasing all hostages being held in Gaza. (The proposal) Separately, Israel said 24 of its soldiers were killed in a single day on Monday, including 21 who were killed in an explosion. It is the highest single-day death toll for the IDF in the latest conflict. (The deaths)
  3. The Supreme Court granted the Biden administration's request to remove razor wire that was erected on the U.S.-Mexico border by Texas law enforcement. (The ruling)
  4. North Dakota Gov. Doug Burgum (R), who recently dropped out of the 2024 presidential race, said he won't seek a third term. (The announcement)
  5. Members of the California Faculty Association, which represents 29,000 faculty members across 23 campuses in the California State University system, ended their strike the same day it started, announcing a tentative agreement had been reached. (The deal)

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Today's topic.

The Chevron doctrine. On Wednesday, the Supreme Court heard arguments in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, two challenges to the so-called Chevron doctrine (or Chevron deference). The conservative-leaning court seems poised to limit or strike Chevron deference down, reversing 40 years of judicial precedent that was once championed by conservative icon and former Supreme Court Justice Antonin Scalia.

Reminder: Chevron deference was born out of the 1984 case Chevron v. Natural Resources Defense Council. In its decision, the court gave deference to agencies under President Ronald Reagan's administration to reasonably interpret statutory text that allowed those agencies to more easily withstand legal challenges from environmentalists. The resulting precedent directs courts to defer to a federal agency’s interpretations of statutory language when Congress has left the law ambiguous.

Now, many conservatives are arguing that the doctrine grants too much power to federal agencies, and conservative legal groups are arguing that federal judges should have more power to strike down regulations that are not sufficiently defined.

We covered Loper Bright Enterprises v. Raimondo last year when the court first agreed to hear the case. At the time, Justice Ketanji Brown Jackson had recused herself because she had heard arguments in the case while a judge on the D.C. Circuit. The court then added Relentless, Inc. v. Department of Commerce to the docket, a second challenge to the same set of rules, bringing Jackson back into the fold. Both cases were heard last Wednesday before the full court.

The challenges involve a rule issued by the National Marine Fisheries Service (NMFS) that required fishermen in the herring industry to cover the costs of taking government-mandated observers on their fishing trips. Those observers monitor compliance with fishery management laws, and can cost as much as $700 per day (though the fishermen were eventually refunded). The fishing companies challenged the rule, asking the Supreme Court to both weigh in on the rule and to overturn Chevron more broadly.

Representing the fishing companies, attorney Roman Martinez argued that Chevron deference undermines the court's duty to interpret the law, noting that even if all nine justices believed the fishing companies had a stronger interpretation than NMFS, the court would still be required to defer to the agency's rule if they considered it "reasonable."

U.S. Solicitor General Elizabeth Prelogar asked the court to keep Chevron in place, arguing it has a tradition in the court's jurisprudence. She cited the court's position of generally adhering to precedent absent of "truly extraordinary justification," something she said was not present here.

All three liberal justices suggested keeping the doctrine in place, mostly arguing that agencies with subject-matter expertise were best positioned to interpret ambiguous laws.

However, each of the conservative justices seemed skeptical of the doctrine, arguing variously that Chevron allows for new shocks to the system every time administrations change, that it consistently works against less powerful individuals who are overmatched by federal agencies, and that the impact of removing Chevron would be relatively minimal, as the court has not needed to rely on its jurisprudence in several years.

Today, we'll examine some arguments from the left and right about the oral arguments in this case and what overturning Chevron would mean, then my take.


What the right is saying

  • The right hopes the Supreme Court will overturn Chevron to better balance power between the branches of government. 
  • Some celebrate the potential end of Chevron as a victory over the administrative state. 
  • Others say the cases before the court are not about helping big business skirt the law but about protecting normal Americans from executive agency overreach. 

In The New York Times, David French said “overturning ‘Chevron’ can help rebalance the Constitutional order.”

“The justification for Chevron deference is compelling, at least on the surface. Agencies regulate some of the most complex businesses and industries in the United States. They possess a level of expertise that’s clearly beyond the capabilities of Congress. Why not defer to their determinations? Isn’t that simply wise?,” French asked. “But what might be wise in specific, highly technical circumstances can be very problematic when adopted as a general rule, as the Chevron doctrine has been. Chevron disrupted the constitutional order by effectively giving the president the power to make, interpret and enforce laws acting solely through his administrative agencies.

“This is not the way the United States was intended to function. It magnifies the power of the president beyond recognition, diminishes democracy, raises the stakes of presidential elections to destabilizing levels and puts immense pressure on the president to maximize his rule-making authority. Just as bad, it encourages congressional inaction and incompetence,” French wrote. “Reversing Chevron wouldn’t end executive rule-making. Nor would it block Congress from explicitly granting agencies a degree of discretion based on agency expertise. It would instead roll back the president’s extraordinary dominance.”

In The American Spectator, Jed Babbin argued “SCOTUS can help drain the swamp by overturning Chevron.”

The Chevron decision “was a fundamental mistake that has burdened the American economy with far too many restrictive regulations,” Babbin said. “The problem is that Congress, being as lazy and indecisive as it is, leaves too many laws vague and gives far too much discretion — real power — to the agencies to make up implementing rules. When it does so, it delegates what should be its exclusive powers to regulatory agencies in violation of the Separation of Powers principle. What is Congress’s responsibility it cannot and should not — though it often does — abdicate in favor of executive agencies.”

“Overturning Chevron would have an enormously beneficial result. Courts would have to look behind an agency’s interpretation of the law to decide whether the law in question actually gave the agency the power to issue the regulation in question. If that happens in the fishermen’s case, the result would be devastating to the bureaucracy,” Babbin wrote. “The ‘major questions’ doctrine does not go far enough. It’s time for SCOTUS to overrule Chevron and hold regulatory agencies to much tougher standards.”

In Reason, Jacob Sullum criticized the “excessive judicial deference” enabled by Chevron

The two cases challenging Chevron show “how vulnerable Americans are to the whims of federal agencies empowered to invent their own authority. The plaintiffs are family-owned businesses that cannot easily bear the financial burden imposed by the requirement that they not only make room on their cramped boats for observers monitoring compliance with fishery regulations but also pay for that dubious privilege,” Sullum said. “The victims in such cases are not billionaires like Charles Koch. They are ordinary Americans who are hopelessly outmatched by government agencies that write their own rules.

“For decades, that license allowed the Drug Enforcement Administration to keep marijuana in Schedule I of the Controlled Substances Act, a classification that President Joe Biden rightly says ‘makes no sense.’ As the Department of Health and Human Services implicitly conceded last August, that policy was based on a highly implausible reading of the statute. The lawlessness fostered by the Chevron doctrine, in short, should give pause even to Koch's progressive critics. The Goliath in this story is not Koch Industries. It is an administrative state that has usurped the judicial power to interpret the statutes under which it operates.”


What the left is saying.

  • The left concedes that Chevron is likely to be overturned but thinks conservatives may be overlooking the ramifications of such a decision.
  • Some describe the court’s likely ruling as a blatant power grab by Republicans. 
  • Others say the cases challenging Chevron are grounded in an inaccurate reading of history. 

The Washington Post editorial board suggested conservatives “might regret” the end of Chevron

“Initially praised by Justice Antonin Scalia, Chevron was a unanimous ruling to uphold a Reagan administration air pollution regulation that environmentalists considered too lax,” the board noted. “The distribution of power has shifted since then. With a mix of good luck and Senate GOP leader Mitch McConnell’s application of some hardball politics, Republicans can count on a conservative supermajority on the Supreme Court… These political developments, as much as high-minded constitutional principle, explain conservatives’ objections to the doctrine and their broader effort to invigorate judicial supervision of the executive.”

“In time, however, conservatives might come to regret all of this. At their core, the cases the court heard Wednesday are about power — and, more specifically, whether a 40-year balance between the executive branch and the judiciary should be shifted. Long-term, who wins and who loses will depend on who controls these organs of government,” the board wrote. “With the major-questions doctrine in place, courts already have more latitude to prevent liberal presidents from regulating ambitiously. By also pushing for Chevron’s destruction, conservatives run the risk that, when Republican administrations try to write weak regulations that arguably fall short of what Congress desired, future courts might not defer to them.”

In Slate, Mark Joseph Stern said “the Supreme Court is about to seize way more power from Democratic presidents.”

“The three liberal justices, led by Kagan, mounted an impressive defense of Chevron in the face of their colleagues’ open hostility. At its core, Kagan explained, the doctrine is about respecting democratic choices. Congress (whom the people elect) passes laws that grant the president (whom the people elect) broad discretion to make certain policy choices by assigning key decisions to executive agencies; federal judges (whom the people do not elect) must defer to these decisions so long as the accountable officials interpret the law reasonably,” Stern wrote. “With Chevron, each new administration provides its own answer to these questions.”

“Without Chevron, each administration is handcuffed to the federal judiciary’s answer, replacing a ‘democratic structure’ with ‘judicial policymaking.’ Jackson didn’t say this next part, but everyone knows it: Because SCOTUS is relentlessly hostile to the administrative state, this system stacks the deck in favor of deregulation. Which—let’s be honest—means boosting Republican presidents and hobbling Democratic ones,” Stern said. “Without Chevron deference, it’ll be open season on each and every regulation, with underinformed courts playing pretend scientist, economist, and policymaker all at once.”

For The Brennan Center, Gautham Rao and Thomas Wolf argued that opponents of Chevron “misuse history.”

“The corporations mistakenly claim that, from the early years of the republic through the late 19th century, the federal courts were a strong check on federal agencies. They point to the framers’ concept of separated powers — according to which only courts can interpret the law — and the norms of 19th-century federal courts — according to which judges decided all legal questions raised by agencies’ actions for themselves. In reality, though, American agencies and courts didn’t work like that. The notion of the 19th-century federal judiciary micromanaging federal agencies is a historical fantasy meant to satisfy the conservative supermajority’s allegiance to originalism,” Rao and Wolf wrote. 

The corporations behind the Relentless and Loper Bright Enterprises cases “are hoping that the Court ignores the actual history of federal agencies in the early republic and beyond. They want the Court’s conservative supermajority to eliminate agency regulations — and maybe agencies themselves. But the history just isn’t on their side. Chevron deference comes out of the country’s enduring tradition of federal agencies interpreting the law when they need to. The court shouldn’t use fake 19th-century history to strike it down. For these cases, the history is clear: in the founding era and well beyond, federal courts rarely checked agencies’ activities.”


My take.

  • On one hand, I think Chevron places too much power in federal agencies and that Congress needs to pass more specific legislation.
  • On the other hand, Chevron empowers subject-matter experts appointed by elected officials over unelected judges.
  • All of the arguments are strong, and I honestly just can’t say which ones outweigh the others.

When we first covered this last year, I said I was very torn on the issue, and after hearing oral arguments in the case I can't say that has changed much. 

Readers ask me regularly about the various pressures I feel to lean left or right or to try to find some middle ground. But I don't find that those pressures actually influence me much — the greatest pressure, by far, is the one to take a position in the first place rather than just say “I don’t know” or “I can't decide.” But in this case, I truly can't make up my mind.

At a fundamental level, no federal agency should be able to put a monitor on a fisherman's boat, then force that fisherman to pay that monitor’s fee, especially when the cost is so high it could undercut an entire business — and any judicial doctrine allowing that seems broken. When you hear these fishermen explain it in their own words, it strikes you as deeply unfair. At that base level, I am sympathetic to the plaintiffs in this case, and to the argument that the Chevron doctrine often hurts "regular" and less powerful individual citizens just as much as it might be used to restrain major corporations.

I also agree with many conservative pundits who argue that this entire problem is the product of legislators outsourcing too much of the actual legislative process. The vastness of the network of agencies and bureaucrats we need to enforce our laws is a necessary evil in a country of nearly 400 million people with so many particular industries that require informed oversight. But today, we have had successive presidents and Congresses that have offloaded their duty of enacting far-reaching policy onto the administrative state. Rather than pass specific laws to accomplish specific ends, we're left with executives achieving their policy goals by directing agencies to act under dubious interpretations of inapplicable laws. Recent examples are illustrative, like Biden telling the Department of Education to forgive hundreds of billions of dollars of student loans using a law designed for wartime or national emergencies, or — in this case — Trump imposing a rule on fishermen and then allowing an agency to pass the cost onto them.

At the same time, some of my positions moved after hearing oral arguments and reading the debate. For instance, the first time we covered this issue I wrote that Chevron creates an erratic system by allowing new administrations to reverse course every two to four years. But U.S. Solicitor General Elizabeth Prelogar argued convincingly that this is a feature, not a bug, and that the administrative state should be responsive to the electorate. Mark Joseph Stern (under “What the left is saying”) also made this case convincingly in Slate. In other words: allowing voters to influence policy through agency appointments made by elected presidents and confirmed by elected members of congress is actually a superior system to outsourcing that process entirely to unelected judges.

I also appreciate the fundamental idea that judges, members of Congress, and presidents are not always the best people to determine how to implement policies or interpret ambiguous statutes in very complicated industries. While I think the fishermen here have a strong case, I'm fearful of a world without Chevron where Supreme Court justices might get to tell a nuclear scientist that a safety precaution they want to implement is not necessary, or a securities expert that a new regulation is needed where it isn't.

And yes, it is relevant that conservative justices once heralded Chevron when it was used to limit environmental regulation in the 80s, but today’s right-leaning justices want to strike it down now that federal agencies are acting against some conservative interests. Whether that is ideological hypocrisy or a sign of the underlying facts changing depends on where you're sitting, but I think it's reflective of how politicized the judicial branch has become over the last 40 years.

All of those arguments hold true for me, but since they don’t directly contradict one another I'm really not sure where I land. It seems clear the court is going to limit or completely reverse Chevron, and I could see a world where that ends up curtailing administrative overreach and promoting stability in law. I could also see it unleashing a slew of de-regulated corporations, judge shopping, and know-nothing judges acting against the interests of American voters. It could even be all of the above — or, given that the court hasn't even used Chevron in several years, perhaps the impact will be far less than either side expects.


Some big news.

Heads up: As many of you know, we record a daily podcast — which is essentially me reading and riffing on the newsletter. But in 2024, expanding and iterating on the podcast is one of our big priorities. We’ve already introduced a co-host for Friday editions, and later in the year will be launching a series where we follow undecided voters up until election day.

As part of these changes, we are also trying to interview people whose writing we cite in the daily newsletter. So in today's podcast, you can hear brief interludes where we chat with Jacob Sullum (featured under "What the right is saying") and Tom Wolf (featured under "What the left is saying”). The podcasts usually get published about an hour or two after the newsletter is released. If you haven’t yet, today is a great day to subscribe to and turn on notifications for the podcast here.


Your questions, answered.

Q: Why can't a country like the U.S. present two presidential candidates that are more acceptable than Biden or Trump?

— Bill from Loudon, TN

Tangle: For two reasons: First, because people actually want Trump or Biden. Second, because a lot of people don’t vote in the primaries. 

I’ve gotten some version of this complaint a lot over the past year, and I bet that you’ve heard it, too. There’s a good chance you may have even said it: “I don’t want Trump or Biden to be the president.” And it’s not hard to understand that. I ruffled some feathers last Thursday when I gave my version of the best defense of Joe Biden’s presidency, and that wasn't surprising: His approval numbers are very low. He’s currently at 39%, and has been slowly dropping for about a year. Donald Trump can’t say he was doing much better since he ended his term with a 38% approval rating.

So, why are we barreling towards a 2020 rematch that nobody wants?

First, because a lot of people actually want it. Otherwise it wouldn’t happen. Partisanship may be at an all-time high, so editorials criticizing the opposing political party and hyperbole about how the left or the right is bringing about the destruction of our country generate traffic. Every time I write something that gives credit to one party, I get scores of complaints from the other side. Every time I criticize, I’m told the other side is worse. And every critique I read is dialed up to 11 — I recently heard a talk radio host compare the Pentagon not disclosing Lloyd Austin’s disappearance to the Third Reich. 

With the amount of utter dismay about a potential Trump vs. Biden rematch you’d think that we were talking about two candidates polling at 30-35% with a narrow lead over a crowded field. Instead, we’re talking about one candidate with 66% of Republican support and another with 72% of Democrats.

To put it simply: Trump and Biden are nowhere near as unpopular as everyone thinks they are. What’s more accurate is that Republican disdain for Biden is extremely high, as is Democrat disdain for Trump. So it’s not that nobody wants Trump or Biden to run again, it’s that nobody wants Trump and Biden to run again.

Second, if every person who leaned more to the left or right who is disillusioned with that side’s leading candidate actually showed up to vote in a primary, then we’d probably get different results. If you look into the methodologies of any of the polls used by 538 to gather their polling average, you’ll see that they get their numbers by asking people who are “likely to vote in the primary.” Trump crushed the competition in Iowa, but turnout was at a record low. Biden isn’t even campaigning and the DNC isn’t holding debates — but who within that party is even demanding them?

Not too long ago, we interviewed Nick Troiano from Unite America about election reform. His argument for open primaries convinced me that the process should change — but it hasn’t yet. So you should suck it up, choose a party, and participate in their process. If you don’t then you’re just resigning yourself to the choices each party makes, and assuring yourself a November where you have to vote against a person you hate rather than ever having the chance to vote for a candidate you actually like.

Want to have a question answered in the newsletter? You can reply to this email (it goes straight to my inbox) or fill out this form.


Under the radar.

The House January 6 Committee deleted more than 100 encrypted files before the GOP took the majority, according to a new report in Fox News. Barry Loudermilk (R-GA) is leading an investigation into January 6, 2021, and the panel is investigating alleged security failures that day as well as the former select committee that investigated the riot. Sources told Fox News Digital that the former select committee was required to turn over all documents to the now GOP-led panel, but that the committee received only two of the four terabytes of data said to exist. A digital forensics team scraped the hard drives and found that 117 files were deleted and encrypted on January 1, 2023, just days before they were supposed to be turned over. Fox News has the story.


Numbers.

  • 3,000-4,500. The typical number of rules published by executive agencies per year, according to a 2019 Congressional Research Service report.
  • 17. The number of times the Congressional Review Act of 1996 has been used by Congress to overturn a federal regulation. 
  • 16. Of those 17, the number of overturned regulations that occurred during the Trump administration. 
  • 677. The number of pieces of legislation enacted by the 98th Congress (1983-84). 
  • 35. The number of pieces of legislation enacted by the 118th Congress to date (2023-present). 
  • 16. The number of “major laws” passed by Congress between 1983-1987. 
  • 27. The number of “major laws” passed by Congress between 2019-2023.

The extras.

  • One year ago today we wrote about Biden’s classified documents — and we apologize for yesterday, when we included a link to an article from two years ago.
  • The most clicked link in our newsletter yesterday was the trending, and fading, 2024 baby names
  • Trump v Haley: 875 Tangle readers responded to our poll asking what the effect of Ron DeSantis dropping out of the Republican primary will be with 52% saying it will help Trump. 29% said it will not impact the race, 14% said it will help Haley, and 5% were unsure or had no opinion. “All independents that don’t want Trump will now know who to vote for so it helps Nikki. But she still won’t win. We are doomed to a Trump Biden rematch,” one respondent said. 
  • Nothing to do with politics: Drone bots protecting birds from power lines.
  • Take the poll. How do you think the Supreme Court should rule on Chevron deference? Let us know!

Have a nice day.

Don Wheeler shovels the walkway outside his home in Mentor, Ohio, every time it snows. It takes him hours to do, sometimes days, and can be a real challenge. “There's always a challenge when you got a life in a wheelchair full time, but I always love a challenge,” Wheeler said. One snowy day when he hadn’t gotten the time to shovel, he went outside to get a package he’d ordered from the Amazon delivery man when he heard him, already outside — shoveling his ramp. “My heart wants to cry with joy. It does mean an awful lot. See, I'm getting emotional about it," Wheeler said. “The world is changing, and it's changing fast. So, little deeds like this need to be brought forward to bring humanity back to normalcy. So God bless the kid, the gentleman, for doing it out of the kindness of his heart.” ABC News 5 in Cleveland has the story.


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Isaac Saul
I'm a politics reporter who grew up in Bucks County, PA — one of the most politically divided counties in America. I'm trying to fix the way we consume political news.