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Notes -
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:
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.
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.
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.
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:
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.
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.
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