Supreme Court opens door to ‘tsunami’ of regulatory challenges
Torts law in the US has encouraged the chaos of massive litigation in the private sector. It’s difficult to enact torts reform because so many people benefit from the chaos.
Is it possible that Loper triggers the same in the private sector? Is this what Jackson is suggesting?
‘Justice Ketanji Brown Jackson in her dissent argued that the ruling, coupled with a Friday decision that curbed the power of executive agencies, would authorize “a tsunami of lawsuits” with “the potential to devastate the functioning of the Federal Government.”
‘She called on Congress to “address this absurdity and forestall the coming chaos.”
‘“Congress can make clear that lawsuits bringing facial claims against agencies are not personal attack vehicles for new entities created just for that purpose,” Jackson wrote.’
For all those who predict cats-and-dogs-sleeping-together uncertainty from Loper, we should also recognize that that market has negotiated policy uncertainty since Chevron. The only difference here is that agents had no legal recourse. With Loper, now they do.
‘This harkens back to the 1984 Chevron case in which the Supreme Court ruled that the government’s executive agencies and their experts could interpret federal statutes. At the time, it was argued that the government was both competent and immune to personal benefit. This was seen as untrue; bureaucratic and internal battles frequently influenced decisions, and in setting prices, the government drove prices up. The desire to be equitable did not necessarily achieve the goal. The counterargument was that commerce without indifferent oversight does not take into consideration product safety or logic of cost and creates expensive inefficiencies. To a large degree, government regulation, by experts or others, created uncertainties in the marketplace with potentially poor thinking, frequently leaving no avenue of complaint at all, or at an affordable price.
‘What had been rational during WWII was challenged over a regulation concerning fish. The fishermen had the resources to challenge them. The Supreme Court ruled last week in favor of the fishermen and against government regulators. In a more radical sense, it ruled that the regulation of the federal government had to be made by courts through the standard system.’
RIP Chevron (1984-2024): SCOTUS Kills Decision That Gave Unbridled Powers to Unelected Bureaucrats
Another objection appears to be that Loper is a partisan backlash against the regulatory state. But wasn’t Chevron based upon the assumption that the regulatory state was indifferent and professional? If that assumption was incorrect, as the holes punched in Chevron over the years suggest, why wouldn’t it be right to restore the pre-Chevron regime with its reliance on the Administrative Procedure Act?
‘“All that backs today’s decision is the majority’s belief that Chevron was wrong—that it gave agencies too much power and courts not enough,” the dissenting Justices conclude. “But shifting views about the worth of regulatory actors and their work do not justify overhauling a cornerstone of administrative law.”’
Supreme Court Extends Time Frame for Challenges to Regulations
Jackson predicts a wave of litigation. The way she describes the future could apply to the torts bar in the private sector.
Wouldn’t that be something if the torts bar managed to grow their practices with administrative litigation?
‘Justice Jackson cautioned that the outcome could lead to abuse of the courts by wealthy groups trying to skirt the rules.
‘“It also allows well-heeled litigants to game the system by creating new entities or finding new plaintiffs whenever they blow past the statutory deadline,” Justice Jackson wrote. “In doing so, the court wreaks havoc on government agencies, businesses and society at large.”’
US Supreme Court attacks federal regulation of corporate interests
The socialists think Chevron is another step towards oligarchy. Maybe they read Ferguson’s piece on the Soviet-like nature of the West.
‘The gutting of federal oversight of business and destruction of regulatory restraints on profit-making and the enrichment of the corporate elite are part of an ongoing and accelerating social counterrevolution. Essentially, the legal and governmental superstructure of capitalism, particularly in the United States, is being brought into line with the underlying oligarchic character of the economy. Past reforms, bound up with mass struggles of the working class and in themselves limited and highly inadequate, are being brushed aside in line with the increasingly parasitic character of the American capitalist economy and its domination by massive blocs of capital.’
Weakening Regulatory Agencies Will Be a Key Legacy of the Roberts Court
The New York Times speculates that attacking Congressional delegation of lawmaking authority to the agencies is up next after Chevron.
‘But while overturning Chevron is for now the capstone victory for the conservative legal movement’s assault on the administrative state, it may not be the endpoint. More extreme opponents of regulation hope the court will go a step further, declaring a sweeping interpretation of the so-called nondelegation doctrine to be the law of the land.
‘Under that theory of the Constitution, Congress should not be allowed to delegate any of its lawmaking authority to technocratic experts at executive branch agencies to come up with legally binding rules. If that notion were to be embraced by a majority of the court, the entire government structure of regulatory agencies — and the rules they have developed over the decades — could fall.’
DELEGATION AND DEFERENCE IN THE ADMINISTRATIVE STATE: THE FATE OF CHEVRON DEFERENCE
It’s an interesting argument. Congress isn’t very good at legislating (presumably, in part, because they shifted so much of that role to the agencies after Chevron in 1984).
Asking Congress to do their job is a fool’s errand, by this logic, so the judiciary will gain power in the vacuum created by Congressional dysfunction.
‘A change to Chevron could require a change to how Congress writes statute – specifically, Congress would have to write clearer, more precise statutes to prevent plaintiffs from suing and courts from stepping in to determine what Congress intended. When discussing Chevron, Rep. Derek Kilmer (D-Wash.) recently said, “Congress would need to adopt a more precise approach to legislation, making sure that laws are written with enough specificity to guide implementation without relying on agency interpretation.” “Not doing that would potentially mean ceding an extraordinary amount of power to the judiciary.”11
‘Rep. Kilmer’s comment begs the question: Can Congress be more precise? There are at least two interrelated reasons to be skeptical. First, recall that Congress delegates, in part, because it cannot account for every eventuality in law. It is simply not possible for Congress to foresee all changes in society that may require a government response. For example, suppose it’s 1999 and the 106th Congress is drafting a law delegating authority to an executive branch agency to regulate financial markets. Is it reasonable to expect Congress to foresee the invention of crypto currencies? If the answer is no, a possible response to this concern is that Congress can simply write a new law delegating authority to regulate crypto currency rather than granting an agency broad discretion back in 1999.
‘This response raises the second reason for skepticism: Scholars have sounded the alarm about Congress’s capacity to legislate in recent years, describing an atrophied institution suffering from decades of neglect. In sum, the Supreme Court may demand more precision from Congress to avoid courts from playing a major role in shaping Congress’s grants of regulatory authority. More precise statutory language will likely result in narrow grants of agency discretion which require more legislation from Congress to respond as society evolves and new public problems arise. It’s not clear Congress is up to the job. Therefore, overturning (or narrowing) Chevron could mean courts, not agencies, will largely determine Congress’s intent when it comes to agency statutory authority.’
Bureaucracy Is Eating Higher Education. Just Look at Yale
At what point is the primary purpose of the university to make work for clerks instead of educating its students?
‘The decades-long decision to build up the bureaucracy rather than the classroom has made the core mission of the university — education — increasingly challenging for those few still hired to do it. One Yale professor commented that the added bureaucracy can make something as simple as changing a planned course an obstacle to fight through, adding that “the more administrators you have, the harder it is to get anything done and everything slows down.” Another pointed out that the increased bureaucracy has meant “all sorts of paperwork for the rest of us.” A former Harvard dean said the growth in bureaucracy at his own university wasn’t “great for the students,” noting that “I also don’t think it’s good for the faculty, either.”
‘To find out what an organization values, see how it allocates its resources. The growth in the higher-education bureaucracy demonstrates that education is no longer the focus of America’s colleges and universities. Rather than filling faculty lounges with professors or classrooms with students, American higher-education institutions have become ecosystems with a purpose entirely separate from teaching. Bureaucracy, not education, is their main concern.‘