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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.
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.
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