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Thread: Relentless v Dept of Commerce

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    Senior Member dneal's Avatar
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    Default Relentless v Dept of Commerce

    Oral arguments today for a challenge to Chevron. This could be a massive blow to the administrative state.

    Link to NPR article for summary of issue.

    Link to oral argument transcript.
    "A truth does not mind being questioned. A lie does not like being challenged."

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    Default Re: Relentless v Dept of Commerce

    @kazoolaw - your thoughts on this case?

    Gorsuch is no fan of Chevron, as he writes in A Republic, If You Can Keep It, nor of Wickard v Filburn.

    I do sympathize with Justice Jackson's concern, although I don't think that's a sufficient reason to not overturn Chevron.
    "A truth does not mind being questioned. A lie does not like being challenged."

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    Default Re: Relentless v Dept of Commerce

    There was a reason I hated my class on the APA, and fled from issues like this. My limited experience with federal agencies, usually the EPA, made me cringe. But, Iíll accept the invitation, do a bit of reading and give you some thoughts.

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    Default Re: Relentless v Dept of Commerce

    The debate over the Chevron and Relentless cases reflects long-standing differences in attitudes toward the theory and practice of government. My temptation is to write and have it be a dense, and littered with terminology, and splitting hairs. Instead, here are some thoughts on various aspects of the cases, in no particular order.
    -Federal agencies are described as the fourth branch of government, in addition to the legislative, judicial, and executive branches. Not prescribed by the Constitution, the agencies are a creation of the legislative branch, yet function as part of the executive branch.
    -To my mind, there is a connection between Congress having "to pass a law to see what's in it" and having the agencies to throw the issues over to for handling.
    -There's no question that government and the world are more complicated that in the 18th century. There is more money flowing through the government, and more areas within the government's control
    -Chevron has been described as a reaction to concerns that the Courts were deciding policy issues, "legislating" not deciding legal issues. There was also the thought that agencies could bring a level of expertise to issues beyond the level that of judges deciding issues only as they come before the courts.
    -The idea of giving "deference" to the agencies was an attempt to balance the mission and presumed expertise of the agencies without giving them free license to decide without any review.
    -"The power of an administrative agency to administer a congressionally created and funded program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress." Morton vs Ruiz**And so, where Congress explicitly or expressly delegated authority in an area to an agency a court challenge to the action could overturn the agency only if its act was "arbitrary or capricious."
    -Where there was no express delegation of authority the court would need to decide if a statute is ambiguous. If a statute is "ambiguous" a court would defer to the agency's action or interpretation if it was reasonable. The court would not substitute its own equally reasonable, but different, interpretation. *
    -This results in statutes not addressing issues and administrative agencies deciding what they mean, effectively ruling what the law is in the face of Congressional silence.
    -Not being elective bodies, an argument is that they can swing back and forth on issues depending which party controls Congress. Having agency decide policy issues allows Congress not to decide, punt the issue to the appropriate agency and let it take any heat which may come.

    Having said all that, I believe that it is time for the Supreme Court to attempt to re-balance the respective roles of the courts and the agencies. Doing so requires taking articulating the separation of powers among the three branches. The Court could say that at some point Congress needs to specifically state how much of its own power it is giving up, delegating to the agencies, in each instance. The Court could rule that in each instance it is the Court's role to decide the meaning of the statute, a position it gave up in the Chevron case.

    To list instances of over reach by agencies would make this post even longer than it already is. Morton referred to above gives a hint. The Bureau of Indian Affairs said that its budget was only for Indians on reservations. Or when Indians were "reservation adjacent." Which it didn''t define, and didn't disclose when it was using that term. The Court also found that the BIA didn't follow the procedures for making rules provided in the Administrative Procedures Act. Both political parties have decried agencies legislating.

    Sorry that this is too long, and probably not helpful on the issues. The NPR article does an OK job on the case.

    *-all this is an attempt to simplify, or over-simplify, the legal theories.
    **-Morton vs Ruiz https://tile.loc.gov/storage-service...srep415199.pdf
    ***-The transcript of the companion case to Relentless is a bit more readable. Paul Clement does a good job outlining his arguments and responding to questions. Loper https://www.supremecourt.gov/oral_ar...2-451_o7jp.pdf


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    Default Re: Relentless v Dept of Commerce

    I'll take a swing at the layman's understanding, and kaz can correct or adjust as necessary.

    - Congress creates agencies to oversee some task, and that agency is under the control of the executive (whose job it is to oversee the execution of laws)

    - Agencies have "rule making" authority, which carry the force of law and often have civil or criminal punishments to aid in enforcement.

    - Many agencies have systems where they adjudicate disputes to policies implemented/enacted. Some even have their own judges to accomplish this

    On the surface, that makes a lot of sense and seems perfectly reasonable - as long as everyone acts in good faith (and abides by their oaths to support and defend the constitution).

    There are a few problems, Constitutionally.

    - The Constitution says laws must originate in the legislature, which agencies of the executive aren't. This gives the executive essentially legislative power.

    - Agencies adjudicating disputes (particularly with judges) is not a proper role of the executive, and usurps the judicial branch's authorities.

    In practice, there are several serious problems.

    - Agencies expanding the scope of regulations and their authority. Many of these cases have been with the EPA (e.g.: a newly dug farm pond being ruled a violation of some watershed provision). A citizen trying to dispute such rule is rarely able to afford the legal cost to fight the government (let alone the fines that accumulate if they don't comply immediately). Imagine buying a parcel of land to build on, and having the EPA show up and say you must stop construction after you've started.

    - Agencies changing rules, where X is legal on Monday but illegal on Tuesday (e.g.: ATF ruling on pistol braces make a person a felon for possessing something that was previously legal). In addition to fines, one has now committed a criminal act (often a felony).

    - As the administrations change from D to R to D to R, rules are changed back and forth by executive order.

    The majority of these agencies are created through an FDR era court ruling Wickard v Filburn, which relies on the interstate commerce clause of the Constitution, and everything is interpreted as interstate commerce. The FDA? Interstate commerce clause. USDA? Interstate commerce clause. The authority to create the Department of Education? Interstate commerce clause.

    Some agencies (as kazoolaw points out) couldn't have possible been foreseen by the founders. The Federal Aviation Administration, for example. Eliminating them creates some obvious problems (which Justice Jackson raises in oral arguments).

    This case is important because it (hypothetically) could completely dismantle the federal bureaucracy - except those agencies authorized by the Constitution like State, Treasury and Defense.

    This brings us to:

    Having said all that, I believe that it is time for the Supreme Court to attempt to re-balance the respective roles of the courts and the agencies. Doing so requires taking articulating the separation of powers among the three branches. The Court could say that at some point Congress needs to specifically state how much of its own power it is giving up, delegating to the agencies, in each instance. The Court could rule that in each instance it is the Court's role to decide the meaning of the statute, a position it gave up in the Chevron case.
    I agree the re-balancing is essential at this point. How (or if) they do that will be interesting, and a potentially monumental shift.
    "A truth does not mind being questioned. A lie does not like being challenged."

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    Default Re: Relentless v Dept of Commerce

    "This case is important because it (hypothetically) could completely dismantle the federal bureaucracy - except those agencies authorized by the Constitution like State, Treasury and Defense."

    This is too optimistic in my opinion. I didn't notice any challenge to Congress explicitly delegating power to federal agencies.

    I would guess that the Court's decision will be in the area coming to middle ground between abandoning interpretation to an agency and taking the position that the judicial branch can make those decisions without giving the deciding weight to the agency.

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    Default Re: Relentless v Dept of Commerce

    Sorry, wasn't trying to sound optimistic with a hypothetical. Just illustrating the extreme end of the spectrum.

    Point was that it sets the stage to undermine rule making authority by contesting the Constitutionality of Congress being able to delegate rule-making power. Gorsuch criticizes it thoroughly in his book. Thomas' 2-part rule in Bruen is an example of a decision implementing something that consequentially ruins most any attempt to infringe on the 2A. I don't think anyone saw that coming.

    Gorsuch is the one to watch, I think.
    "A truth does not mind being questioned. A lie does not like being challenged."

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    Default Re: Relentless v Dept of Commerce

    Taking down the APA, enacted in 1946, would be pretty big.

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    Default Re: Relentless v Dept of Commerce

    The Supreme Court does tend to get the big cases every now and then.

    I don't expect some decision that overturns the Wickard or the APA. The opportunity does arise to take most of the teeth out of it, and set the precedent.

    Heller -> MacDonald -> Bruen were a series of 2A rulings. The first allowed for "common sense" gun laws. The last severely restricted them with the 2-part rule.

    This is a similar opportunity.

    Think bigger picture and longer term.
    "A truth does not mind being questioned. A lie does not like being challenged."

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    Default Re: Relentless v Dept of Commerce

    Quote Originally Posted by kazoolaw View Post
    Taking down the APA, enacted in 1946, would be pretty big.
    Here is Wikipedia explaining the Administrative Procedure Act of 1946: https://en.wikipedia.org/wiki/Admini..._Procedure_Act

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