Only chills you if you believe unelected bureaucrats should be free to make their own laws. Sorry, I’m not in tune with that portion of the progressive anthem.
Well, the chills part is that Thomas and Gorsuch would possibly even reverse child labor laws because they think they’re unconstitutional. I’m not sure if that’s true or just an alarmist possibility. Hopefully it won’t come before the court so we’ll never find out. But I think there’s other possibilities mentioned in that article that might.
For example, the ability of the EPA to regulate environmental law might go away if Thomas and Gorsuch have their way, and that might be a real possibility.
Scalia was also big on voiding vague laws/rules.
That struck me as a classic case of the writer setting up a straw man to knock it down in order to read as much into the very little evidence in Gorsuch’s opinion supporting his argument. It’s a pretty substantial leap from what’s actually in that opinion to concluding that he’s ready to overrule Chevron. Maybe he is, but I can’t conclude that only on the basis of that opinion.
Millhiser links Gorsuch’s opinion in this case to Gorsuch’s prior opinions and writings to support his argument. You on the other hand offer up another trope from Caricatures in Progressive Weekly.
The only Gorsuch opinions he cites are ones in which Gorsuch wrote against regulatory restrictions on individual liberty. Again, it’s a long reach from there to striking down Chevron. Oh, and I’ve never read Caricatures in Progressive Weekly.
You misspelled “corporate.”
I’m not as down on corporate rights after listening to this segment on On the Media. The professor makes some great points.
https://www.wnycstudios.org/story/how-corporations-got-rights
Edit: Weird that it doesn’t link to the page, but sets up the audio directly.
How did the Gutierrez-Brizuela case, cited by the writer, involve corporate rights? It was an immigrant being jerked around by the government.
Requiring that the legistlature be more specific is not a bad thing.
I agree with Gorsuch that the notion that this stuff should just be defined by whatever the regulating agency thinks puts too much power into the hands of those agencies.
I was referring to Chevron, which isn’t about individual rights.
So Congress should micromanage regulatory agencies as technology and science advances? Do you know who the current (but soon to retire) head of the science committee is?
There’s supposed to be a balance. Traditional administrative law says that the courts should give deference to a regulatory agency’s interpretation when language in the statute is ambiguous. Gorsuch’s opinion doesn’t change that. It says that the statute can’t be so unclear as to allow the regulatory agency to set policy, a role that has always been reserved for the legislature. I don’t see that view shackling administrative agencies to the point that they can’t operate effectively.
That’s not true.
Regulatory agencies have traditionally been given broad mandates by the legislature. For instance, the Clean Air Act was originally about a page in length.
The agency itself crafts a much longer regulatory code, which is available to the public for comment and review and then becomes policy. Here is the current Clean Air Code in all its glory. Nobody in Congress came up with “Appendix C to Part 75 - Missing Data Estimation Procedures. Parametric Monitoring Procedure for Missing SO2 Concentration or NOX Emission Rate Data”. But I’m glad someone did, and now it’s policy.
If the legislature doesn’t like part of it, then they can intervene to make sure that part is permanently scrapped (this is what happened to various Obama regulations in 2017). But generally the agency is allowed set policy without further interference. It’s rare for the legislature to spell out regulatory code, because they simply don’t have enough time to worry about stuff like estimation of missing air quality data.
All this is not what was going on in the Dimaya case. In this case, there was no regulatory code. No comment, no public review, no policy. Just a bunch of government officials who wanted to make it up as they go along. Which is obviously unfair.
To his credit, Gorsuch realized that it’s unfair. However, his opinion also takes shots at the entire regulatory process, which is is worrisome for good reason.
Broad mandates don’t mean the agency gets to set policy. The broad mandate sets the policy and the agency gets to set how the policy is carried out But the mandate cannot be so broad as to let the regulatory agency do whatever it decides the policy should be.
Whether you think the policy is “Let’s have clean air” or “Let’s specify how air quality will be measured” is a matter of semantics, and also irrelevant. Gorsuch did not use the term “policy”, after all. He specifically complained about the legislature handing power over to the executive, and has done so in the past as well. It is perfectly reasonable to see this as a threat to regulatory agencies.
The question is how much power is handed over. And it should be noted that the legislature has the ability to get pretty specific when they want to. It wasn’t the representatives and senators who drafted the 900 pages of the Affordable Care Act. It was the staff and experts they hired. That doesn’t mean they have to get as detailed as the Clean Air appendix you cite, but I don’t have any problem with the legislature having to provide a clear idea of what they want accomplished.
A broad mandate does not mean an ambiguous mandate.
Just 900 pages?
After the ACA was passed, HHS has written over 9000 pages of regulations, with another 7000 pages of proposed regulations. And no, this is not something Congressional staff could have done in their spare time.
Health care is more complicated than you think.
The Constitution is ambiguous. There is something in there about a well-regulated militia that no one can quite agree on. Maybe we should ignore it until that language gets fixed up too?
Gorsuch is a Trump appointee who is only there because the Republican party perverted the constitution and the Supreme court nomination process. Shame on them.
He should be treated with zero respect, the same as all Trump appointee’s.
I’ve worked in healthcare regulation for 20 years now, so I’m pretty damned familiar with how complicated healthcare is thank you very much. My point wasn’t that the legislature can or should write every detail. It was that they have the capability of being specific enough so that the regulatory agency can’t decide the law means whatever they want it to. The ACA, in fact, is a case in point. Did you know that the D.C. Circuit Court of Appeals – in an opinion joined in by an Obama appointee btw – rejected an HHS regulation, because it attempted to add qualifications to a definition that Congress had spelled out in the ACA?
I think a lot of our disagreement at its heart is based on a faith in the regulatory state that progressives have that I don’t share. My progressive friends seem to think that that government bureaucrats will have the best interests of the individual or society at heart, whereas private enterprise will always be mendacious at best and evil at worst. Maybe I’ve been at it too long and have become too cynical, but my experience is that whatever good intentions the bureaucrat brings to the job, inevitably the process triumphs over the intent; that it becomes more about whatever job performance criteria are used to evaluate them – whether the I’s are dotted and the T’s are crossed – than the outcome. If you think I’m wrong, try filing a Social Security disability claim. You will get an education in how government bureaucracies really work.