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PaperclipPerfector  3mo ago (text post)   25837 thread views

Culture War Roundup for the week of January 15, 2024

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How could we fix the Chevron defense?

I am not even sure this is culture war outside of the left tends to think they own the bureaucracy therefore the left has a preference for the Chevron defense.

I assume most have basic familiarity with the Chevron defense and may be aware that a case will soon appear before the Supreme Court where the Supreme Court is expected to weaken the Chevron defense.

Here is a basic Wikipedia summary

“The decision articulated a doctrine known as "Chevron deference".[2] Chevron deference consists of a two-part test that is deferential to government agencies: first, whether Congress has spoken directly to the precise issue at question, and second, "whether the agency's answer is based on a permissible construction of the statute."

https://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natural_Resources_Defense_Council,_Inc.

This has resulted in a situation where different administrations can interpret different laws completely differently. Which to me doesn’t feel much like a nation of laws.

The Chevron defense though does seem to solve a legitimate problem that the US legislature isn’t designed or doesn’t function well to deal with smaller issues/refinements/vagueness in writing laws. One issue here is congress liking to pass big bills in order to horse trade. A second issue is we have 435 congress people and I can’t expect each of them to know the details of manipulative order entry to buy IBM stock and the temperature that a nuclear plant could release waste water that would be too high and kill off the manatees which at some level a law is seeking to deal with.

The Chevron Defense exists because in my opinion someone does need to get the details right for the regulatory state and the regulatory state probably does need to exists (some libertarians will disagree but I think I’ve moved into something like State-Capacity Libertarianism)

Our current options are basically:

  1. The Executive Branch/Bureaucracy gets to decide. With occasional pushbacks from the courts if they go too far. Student Loan forgiveness would be a recent example when the courts stepped in. Taken to the extreme you end up with a system where only one branch of government matters and it’s the Presidency and if you win that you control the meaning of words in everything.

  2. The Courts get to decide the meaning of every word in every piece of legislation. Taken to the extreme if you win the SC you own the meaning of words in every piece of legislation. These people are indirectly elected. As someone on the right I tend to think conservative judges atleast use legal theories where they try to interpret meaning based on how the legislature intended. Thinking of the lefts “living constitution” I think that could become quickly a “living legislature” and then any law could just be interpreted by the current popular view on the left. The Judiciary could then become the true legislature.

  3. The Legislature passes more laws and fine tunes their legislation. For our form of government I believe this is the best path; however I do not think our current system has the operational capabilities

My proposal. We should solve this. My best guess is we need to add mini-legislatures somehow. Congress finds a way to delegate rule-making to smaller focused legislatures that will retain the legitimacy of congress and being Democratic.

What will happen is the SC pushes back on the Chevron defense and takes more power for the courts and removes some power from the executive/bureaucracy. The complexity of the modern world leads me to believe we need to find a legislative solution and the vacuum is leading Courts/Executive doing things they shouldn’t be doing.

Edit: Should be deference as was noted.

Laws are always going to have some ambiguities. And the executive -- which is tasked with implementing or enforcing the laws -- will thus always have some leeway, subject to judiciary oversight.

As an analogy, consider two cities subject to the same traffic regulations (that is laws). City A might say "we use traffic regulations to establish culpability after an accident, but do not prioritize on enforcing them ahead of fact". City B might go full 1984, having AI-powered cameras on every intersection and writing tickets for every missing turn signal.

Unless the law considers specific provisions for its enforcement (like "communities need to spend at least one police hour per resident per year on enforcing traffic regulations" or "traffic violations shall not be detected through autonomous camera systems"), both seem like valid interpretations, even though they will create very different environments.

If you are worried about the president having too much power by establishing law interpretations for their agencies, I think congress could establish agencies outside of administrative reach. Establish some other mechanism (appointment by congress, supreme court, popular vote) to determine who gets to head the EPA. This would likely cause more problems than it solves, though.

My proposal. We should solve this. My best guess is we need to add mini-legislatures somehow. Congress finds a way to delegate rule-making to smaller focused legislatures that will retain the legitimacy of congress and being Democratic.

It's called the committee system and it has existed since the first Congress.

Subject matter committees allow Congressmen to specialize and the institution to begin to develop durable, institutional knowledge. The problem is that Congress is far too small to allow Congressmen to specialize, given the size and scope of the Federal government, and they're too busy fundraising these days to do a good job of it, anyway.

Still happens, though. Mike Gallagher's China committee is a good example.

Yes I thought about that.

My opinion probably lies on the spectrum of the Chevron Deference shouldn’t exists or if it does be extremely limited. The power of the Presidency should be small.

Is it rational that if we get rid of these things that congress is capable of governing? Even if we need to increase its size?

Maybe. There's probably still more going on than just those particular problems. The theoretically correct answer is that the virtue of the people themselves has declined, so we elect men to Congress who will not govern well regardless of the structure you place them in. This is an appetizing enough answer, although certainly not itself complete.

The problem is that Congress is far too small to allow Congressmen to specialize

A tangent, but you brought up one of my favorite hobby horses. I'm fully in favor of dramatically increasing the amount of parasites we have in Congress. More congressmen = far more people you have to bribe in order to succeed at regulatory capture, and citizens will feel a stronger sense of control over their individual representatives creating more trust and legitimacy.

This has resulted in a situation where different administrations can interpret different laws completely differently. Which to me doesn’t feel much like a nation of laws.

So long as both interpretations are permissible (e.g. not completely arbitrary) why not? They are both within the law as Congress chose to write it and signed by the President.

Inversely, to say that laws have to be so constrained as to admit only one interpretation is a fairly strict restriction on the legislature.

The Legislature passes more laws and fine tunes their legislation. For our form of government I believe this is the best path; however I do not think our current system has the operational capabilities

I think this is not only the best path, it's the required path. Congress is expected to pay attention to legislation after it's passed. Both to the judicial interpretation but also to real world impact, unintended consequences and so forth.

I do think that it would be beneficial if there was a semi-formal system by which the courts could note ambiguity and refer the matter to Congress. The court would still have to rule, and Congress wouldn't be required to act on the referral, but it would serve as a tangible record.

You dismiss the libertarian approach a little too quickly I think. The modern bureaucracy is still in need of some degree of justification. There are three major problems with bureaucracy:

  1. Political infections. One of the things bureaucracies are used to do is to reward a politicians' constituents by punishing their competitors. There was a good study of anti trust activities taken on by an anti-trust bureaucracy. 98% of the cases followed this pattern.
  2. Principal agent problems. Private markets often pay better. They get the more competent people, and the few competent people that go into government have a retirement plan of big payouts in the private sector. How do you tell your regulators to carry out some aggressive anti-industry stance when most of those regulators are counting on a job at those companies in a decade? Answer: you don't, at "best" you will just aggressively regulate all newcomers out of the market (which incumbent companies love).
  3. Beating market / court regulation. In the free market and in common law court systems there are already existing forms of regulations and limitations. Many pollution situations are covered by property rights violations. Many cases of bad products are covered by fraud in the court system. Shoddy products that don't do much harm are just handled by the market itself.

True. The libertarian approach is likely how I think this should settle legally.

The administrative state would be severely limited if they needed explicit guidance. And since congress struggles to pass sufficient legislation it would mean a very limited state.

I did want to avoid ideological debates though I opened the door to it. Even in the case at hand for what the court will settle on I would not be completely against the state putting agents on private ships but I am against the state putting agents on ships without specific Democratic legislative intent and simply ordered by a bureaucrat. Someone elected should have a connection to it.

This is a decent summary of the case which I would assume you know. And Kagan’s quote I would completely disagree with.

https://www.npr.org/2024/01/17/1224939610/supreme-court-chevron-doctrine

Justice Elena Kagan threw tough hypothetical questions at the challengers' attorneys, asking if federal judges are really the best positioned to answer questions about whether a new cholesterol-lowering product would be a dietary supplement or a drug.

"And it's best to defer to people who do know, who have had long experience on the ground, who have seen a thousand of these kinds of situations," Kagan said, referring to agency experts. "And, you know, judges should know what they don't know."

A Democracy in my opinion still needs some process to decide what a government can do. The process of a mini-legislature won’t happen but we also aren’t going to have another system either.

The main criticism that most judges are ignoring, and most commenters seems to ignore is that the bureaucracy as a whole is not public service oriented. Those are organizations are subject to incentives, they are run by regular people, and if there is congressional oversight that oversight is concerned with winning elections, not writing good legislation.

Its conflict theory vs mistake theory writ large. The libertarian story is that conflict theory explains most of the bureaucracy. But every issue that winds up in front of a court seems to be resolved on mistake theory grounds.

"Ah well, the bureaucracy filled with people that hate you didn't mean to ruin your livelihood and humiliate you, it just accidentally happened over a series of years as congress didn't provide enough oversight into the day to day rules of the organization. And they may have gotten a little too overzealous about applying certain rules."

Its politics all the way through. And I think whatever protections we expect for people to not be fucked over by their political opponents are the same type of protections people should have from bureaucratic over-reach. If that means gutting the bureaucracy then that is a win. No amount of complaining bureaucracies can't effectively legislate is ever going to move me, because I don't fundamentally trust bureaucracies in the first place.

The main criticism that most judges are ignoring, and most commenters seems to ignore is that the bureaucracy as a whole is not public service oriented.

And will never be; that's Pournelle's Iron Law of bureaucracy.

In any bureaucracy, the people devoted to the benefit of the bureaucracy itself always get in control and those dedicated to the goals that the bureaucracy is supposed to accomplish have less and less influence, and sometimes are eliminated entirely.

I can't speak for the American bureaucracy but in Sweden I can fairly confidently say that most of bureaucracy is public service minded, and to the extent I've interacted with other western European bureaucracies they have been too.

People of course complain about the actions of the bureaucracy but this mostly comes off as them disagreeing with the stated goals of the bureaucracy but blaming the personal motives of the workers.

America seems like it's becoming partisan to truly stupid degrees so maybe the bureaucracy at large really is out to get people for ideological reasons, but I have a hard time believing this.

This somewhat gets too the issue I have with the case at hand of a fisherman being forced to pay the salary of his regulator to be on the boat.

I don’t quite have an issue with the regulator being on the boat as I guess I can think of that situation being necessary for a public good. Which I’m this case overfishing leading to smaller fish catches is definitely a public good.

But I do feel like the person making that decision should be accountable to society and having congress make that decision has accountability even if it’s only a small accountability but having a bureaucrat make the decision feels like their is no accountability or process.

I don't know what the law says here but usually these things are handled by laws giving fairly wide powers to governmental agencies to fulfill their mission as defined by the executive. They are indirectly accountable through the executive (and legislature through whatever overarching laws there are). If there is no legal basis for this agency exacting fees for this kind of category of inspections then it does seem iffy.

I can of course not speak for US law, I'm not very interested in this particular case, I just commented on the claim that the bureaucracy isn't public service oriented, which I disagreed with.

The low level cogs in the machine are mostly blameless. The high level parts of bureaucracies know exactly what they are doing.

Bureaucracies with enforcement powers of any kind are generally going to be worse and more politicized. IRS, ATF, FCC, etc are bad. NASA, BEA, etc are not bad.

Politics is at a level in the US where parties feel it is dumb to just leave weapons lying on the table unused.

I would push back on Congress not being able to write laws to fit the needs of a large government. I think it can, its just no one there wants to, and, in particular, no one wants to vote on regulations that inevitably kill jobs.

*Chevron Deference

Isn't the American solution supposed to be that's something for your state to regulate, with 50 different options for this and leave national defense, international trade and other enumerated powers to the Federal government?

That worked well enough in 1789, pre-telegraphs/railroads/steamships. A 20th/21st century economy is far wider in geographical scope, thus companies can more easily threaten to take jobs/tax revenue elsewhere. In order for a state government to have the option of 'factory that cleans up after itself even if that is less profitable', rather than having only the options of 'horrendously polluting factory' and 'no factory', a method of coördination is needed across state lines.

Not since FDR.

https://www.sunset.texas.gov/about-us/frequently-asked-questions

Seems like a partial solution to add this on the federal level.

Enlarge congress. Congress doesn’t have the time or manpower to deal with administrative issues in any kind of granular detail, so they mostly punt the work of actual lawmaking to administrative agencies. It’s a workable solution, the United Kingdom has six hundred and something MPs for a jurisdiction one third the size of the US. The problem is, that would make each congressman or senator individually less powerful >:(

mini-legislatures

Ah yes, soviets.

This is not really tractable, do we really expect people to vote in special elections for a representative to the EPA or the ATF? And for that to not be even more gamed and corrupt than Congress as it exists?

The juridictional conflicts between these mini legislatures alone seem like a nightmare. Not to mention the level of corruption that could be enabled by procedural specificity. In effect you'd end up with the exact same thing as the current technocratic state, but with even more power because they could claim to have a direct mandate from the people and even less oversight.

The outcome of devolution in the UK should caution anyone about splitting the sovereignty and therefore the responsibility of parliament.

Maybe it’s terrible idea. But when I think about the issue it feels like we are lacking what I would call a middle management legislature.

I wouldn’t advocate for direct election of “mini-legislatures”. Probably something like the mini-legislature has 46 people and any 10 congress people can join in a group to select 1 mini-legislature person. Basically 10 GOP congress people would decide whichever staff knows most about securities legislation and goes on the securities legislature congress. They have to color within the lines of larger bills and if anything they do is too radical a vote of 45% on big congress cancels it.

The alternative would be sunsetting and expecting congress to pass more bills but I just don’t see congress being capable of that.

The Chevron defense feels wrong to me with unelected administrators having too much power for my liking but if we get rid of governance like this it feels to me like a vacuum is left behind.

I think people on the left to often claim Congress doesn’t do anything so we have to do things thru Executive orders etc but I do think there could be a process for cleaning up legislation/more direction later when bills go from law to execution and issues arise.

I wouldn’t advocate for direct election of “mini-legislatures”. Probably something like the mini-legislature has 46 people and any 10 congress people can join in a group to select 1 mini-legislature person. Basically 10 GOP congress people would decide whichever staff knows most about securities legislation and goes on the securities legislature congress. They have to color within the lines of larger bills and if anything they do is too radical a vote of 45% on big congress cancels it.

This is kinda how independent agencies are appointed here in France, you get direction councils with a mix of MPs and appointed experts. I think it's a more pragmatic solution than what the US is doing right now, but I also don't think it's going to change the behavior of the institutions in any significant fashion.

Then again, our parliament is both more and less consequential than US' Congress in ways that are difficult to compare. I do think putting more direct power back in the hands of formal representatives would generally be a positive thing.

4. We eliminate the Administrative Procedures Act. If Congress wants to make something illegal they have to pass a law directly. The whole administrative state is tossed into the toilet.

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