Supreme Court: Chevron Deference

[Matthew]

…and all this because some NJ herring fishermen didn’t want to bear the cost of monitors that report to NOAA to ensure fishing regs are followed. NOAA had been paying the cost, about $700/day per ship. When the program ran out of money, instead of going to Congress for more, NOAA decided to charge the fishing companies directly. Courts said that’s OK because Chevron defers to the agency to interpret ambiguous laws. In this case, the law listed certain classes of fishing vessels and said they must bear the cost. But it doesn’t specify herring vessels. NOAA decided it includes them. SCOTUS said no.

Loper Bright Enterprises v. Raimondo

The Supreme Court should either overrule Chevron or clarify that unelected bureaucrats cannot compel fishermen to pay at-sea monitors without a clear authorization from Congress. This case provides that opportunity.

loperbrightcase.com

 

[Domenick]

Heroes come in all shapes and sizes.
Go herring fishermen!

 

[Ed Haywood]

Go herring fishermen!

But not red herring fishermen.

 

[Llewtrah381]

Court-Clogging Supreme Court Action A Drag On Progress

The Supreme Court has upended the regulatory process with the end of the Chevron deference.

www.avweb.com

And from a post on Beechtalk:

“As I write from the bridge of my commercial fishing vessel in Alaska, reading about SCOTUS disallowing a government agency the National Marine Fisheries Service, to mandate observers on commercial fishing vessels on the East coast I can tell you this: Observers are essential to our business. They sample every tow and extrapolate out exactly how much of a species we catch, which goes against the quota set by the same agency.
The fishery's in Alaska are the best regulated and managed in the world. The fishing is just as good today as when I started 30 years ago.

I bought a trawler out of New Bedford expecting the same excellent management of the East coast fisheries, and boy was I surprised. There are no observers. The cheating is epidemic. When I mentioned to one guy that 4,000 lbs of scallops he was bringing in was quite different from the 400Lb limit, I was threatened with being shot. You may remember the "Cod Father" case. One of the largest commercial fishing enterprises in New Bedford was finally busted after decades of systemic overfishing and fraud.

All easily prevented by having NMFS Observers aboard the vessels. And NMFS Enforcement at the dock when you try to cheat.

I live on Cape Cod and most residents will never catch a cod off their beaches because the cod fishery has been destroyed by overfishing. Read: "Cod" by Mark Kurlansky.

I sold that trawler and never looked back. As far as I am concerned that fishery is one giant criminal enterprise. I wanted no part of it.

The Supreme Court today reminds me of young people who read Ayn Rand for the first time. Sure, let the Midas"s of the world do their thing because that is enterprise in its purest form. Government interference just drags down their supernatural ability to do good.
Hogwash.

GE dumped millions of gallons of PCBs in the Hudson River and my state Massachusetts and Jack Welch, GE's Midas, brilliantly got the company off the hook of having to clean the %#$@ up. Garbage loans were bundled into AAA securities and sold after Regan AND Clinton gutted banking regulations. That turned out well huh?

Just like the folks who think Communism is great, "from each according to their abilities, to each according to their needs" the simple factor of human nature is left out. And in turn we end up with the Stalin's and Pol Pots.

James Madison, the "Master architect of the Constitution" said it best: “If Men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and the next place, oblige it to control itself.”
Thank God men like Madison arsed themselves to form our government, and not some of the bought and paid for shills who populate SCOTUS today.

Currently, this moment, I am jogging my vessel after catching over 100 tons of Mackerel last night. The east coast will never again see fishing like that in my lifetime. Properly managed, by a government agency with teeth, it would have.


Last edited on 30 Jun 2024, 15:04, edited 2 times in total.”

 

[weilke]

If you want to see amok just watch what happens if they toss this, no agency will be able to do anything. Which is of course the point.

If with 'anything' you mean 'make up rules as they go and not be challenged about it', then yes they won't be able to do 'anything'.

All they lose is the ability to say 'because we said so, that's why!'

 

[Llewtrah381]

All they lose is the ability to say 'because we said so, that's why!'

Per the article in my post above, I think we’re gonna lose a lot more than that.

The rule making process is a bit more structured than “because we said so”:

Federal Register :: Request Access

Add: IMHO, most (almost all?) regs at any government level are because someone did something that most of us would think one wouldn’t have to say you can’t do. They’re a reflex, not prospective “because I decreed it”

 

[Matthew]

Congress can amend the law so it applies to the North Atlantic fishing fleet.

 

[Half Fast]

Congress can amend the law so it applies to the North Atlantic fishing fleet.

Yes, it can.

There's lots of unwarranted hand wringing over this decision. All it really does is say that courts are no longer required to rubber-stamp any "reasonable" interpretation from an agency and can give equal credence to reasonable interpretations from a challenger, then arbitrate between them. It means that "expertise" from an agency does not have to be the only expertise that carries weight.

This article seems to be a reasonable discussion of the decision: https://www.sidley.com/en/insights/...reshaping-the-future-of-regulatory-litigation .

The death of Chevron also does not mean an end to deference. First, as the majority opinion recognizes, Congress may (subject to certain constitutional limitations such as the Non-Delegation Doctrine) expressly delegate discretionary authority to agencies. The decision in Loper Bright merely holds that courts should no longer “pretend” that statutory silence or ambiguity constitutes such a delegation. Further, the Court describes its expertise solely in the interpretation of laws; there remains substantial room under the arbitrary-and-capricious standard for agencies to apply their deference in the application of law to new facts.​

 

[Matthew]

10 more minutes and the Supreme Court punches out the rest of their decisions from this term.

 

[weilke]

Per the article in my post above, I think we’re gonna lose a lot more than that.

The rule making process is a bit more structured than “because we said so”:

Federal Register :: Request Access

Add: IMHO, most (almost all?) regs at any government level are because someone did something that most of us would think one wouldn’t have to say you can’t do. They’re a reflex, not prospective “because I decreed it”

I think that's called a 'straw man argument'. Doing away with the 'chevron deference' doesn't eliminate the ability of agencies to issue regulations. It does away with the requirement of courts to defer to the agencies interpretation of the law. Never made sense. Judges are not experts on anything but the law. If they need technical expertise in lets say a liability case, they receive competing expert witness testimony and they decide how to weigh it. This just brought fed agencies back into the real world where your actions may be subject to judicial review.

 

[Domenick]

Court-Clogging Supreme Court Action A Drag On Progress

The Supreme Court has upended the regulatory process with the end of the Chevron deference.

www.avweb.com

And from a post on Beechtalk:

“As I write from the bridge of my commercial fishing vessel in Alaska, reading about SCOTUS disallowing a government agency the National Marine Fisheries Service, to mandate observers on commercial fishing vessels on the East coast I can tell you this: Observers are essential to our business. They sample every tow and extrapolate out exactly how much of a species we catch, which goes against the quota set by the same agency.
The fishery's in Alaska are the best regulated and managed in the world. The fishing is just as good today as when I started 30 years ago.
...

The SCOTUS decision limited an agency/administration from overstepping its bounds as set by congress and the constitution. I do not believe the SCOTUS decision banned observers on boats or docks. The decision was about whether the fishermen would have to pay $700/day to cover the cost of the onboard observers.

The fact the case concerned NOAA's decision to charge fisherman directly for onboard NOAA observers, is almost irrelevant. The decision simply sets such regulatory issues in the lap of congress where it belongs. If congress wants to legislate a direct charge of $700/day to commercial fisherman they can. Until congress passes such legislation, the taxpayers will continue to pay the cost of NOAA observers.

If you think directly charging commercial fisherman for onboard observers is the way to go, then lobby congress to pass legislation.

 

[ateamer]

So do I have this right? NOAA decides that they need to put an observer on every fishing boat. The fishermen didn’t request it. And then NOAA decides that the fishermen have to pay them for the observers, even they’re already paid for by taxes. Seems fair - sure.

 

[Chip Sylverne]

So do I have this right? NOAA decides that they need to put an observer on every fishing boat. The fishermen didn’t request it. And then NOAA decides that the fishermen have to pay them for the observers, even they’re already paid for by taxes. Seems fair - sure.

Infinitely small potatoes compared to what litigation this decision will bring. For instance, CMS determines which statistical area incomes determine Medicare reimbursement rates. Huge amounts of money at issue. Now that those decisions can be challenged in court, who thinks they won't be?

 

[Llewtrah381]

I think that's called a 'straw man argument'. Doing away with the 'chevron deference' doesn't eliminate the ability of agencies to issue regulations. It does away with the requirement of courts to defer to the agencies interpretation of the law. Never made sense. Judges are not experts on anything but the law. If they need technical expertise in lets say a liability case, they receive competing expert witness testimony and they decide how to weigh it. This just brought fed agencies back into the real world where your actions may be subject to judicial review.

Fair enough and I hope you’re right.

Although we want to believe our justice system is fair and unbiased, I think anyone of any political persuasion can sense that’s not 100% true.

“Follow the money”

 

[Half Fast]

Infinitely small potatoes compared to what litigation this decision will bring. For instance, CMS determines which statistical area incomes determine Medicare reimbursement rates. Huge amounts of money at issue. Now that those decisions can be challenged in court, who thinks they won't be?

Of course it will be challenged. So to prevent challenges, CMS would need to take their recommendation to Congress and let Congress incorporate it into the law. The USSC decision prevents CMS from making changes on the whim of an adminstration that will have a large monetary impact on Medicare recipients.

Alternatively, when CMS is challenged, the court may still decide to defer to CMS' position, as in the past, but the court is no longer obligated to do so and can give weight to the challenger's position.

 

[Shepherd]

Chevron was a very bad idea, and I'm glad it's dead.
JMHO

 

[Matthew]

Of course it will be challenged. So to prevent challenges, CMS would need to take their recommendation to Congress and let Congress incorporate it into the law. The USSC decision prevents CMS from making changes on the whim of an adminstration that will have a large monetary impact on Medicare recipients.

Alternatively, when CMS is challenged, the court may still decide to defer to CMS' position, as in the past, but the court is no longer obligated to do so and can give weight to the challenger's position.

I think your last paragraph is key: nothing prevented court challenges prior to this decision. But courts had to defer to the agency when the law was ambiguous. The court still had to decide on the definition of “ambiguous”.

 

[Pinecone]

Add: IMHO, most (almost all?) regs at any government level are because someone did something that most of us would think one wouldn’t have to say you can’t do. They’re a reflex, not prospective “because I decreed it”

Every line in every regulation that I am familiar with came from someone doing something stupid and the regulation re-written to say to not do that.

And I have to be involved with a LOT of regulations throughout my life.

In the past, from some state regs in my field, I could tell you the story behind almost every line in the regs.

 

[Ed Haywood]

So do I have this right? NOAA decides that they need to put an observer on every fishing boat. The fishermen didn’t request it. And then NOAA decides that the fishermen have to pay them for the observers, even they’re already paid for by taxes. Seems fair - sure.

A bit more nuanced than that. Congress passed a law requiring observers and payment for various types of commercial fishing boats. They did not list herring fishermen. NOAA decided the law was ambiguous on the types of boats, and that herring fishermen should be included. The herring fishermen sued, saying they were not on the list. Under Chevron precedent, the courts would defer to NOAA's expertise on whether herring fishermen are included in the list or not. Without Chevron, the courts will be more free to scrutinize NOAA's decision.

As usual, any ideological take is mostly nonsense. This is neither the defeat of tyranny nor the advent of anarchy. It is a rather obscure procedural issue that has pros and cons in terms of impact on citizens.

 

[Lindberg]

Court-Clogging Supreme Court Action A Drag On Progress

The Supreme Court has upended the regulatory process with the end of the Chevron deference.

www.avweb.com

And from a post on Beechtalk:

“As I write from the bridge of my commercial fishing vessel in Alaska, reading about SCOTUS disallowing a government agency the National Marine Fisheries Service, to mandate observers on commercial fishing vessels on the East coast I can tell you this: Observers are essential to our business. They sample every tow and extrapolate out exactly how much of a species we catch, which goes against the quota set by the same agency.
The fishery's in Alaska are the best regulated and managed in the world. The fishing is just as good today as when I started 30 years ago.

I bought a trawler out of New Bedford expecting the same excellent management of the East coast fisheries, and boy was I surprised. There are no observers. The cheating is epidemic. When I mentioned to one guy that 4,000 lbs of scallops he was bringing in was quite different from the 400Lb limit, I was threatened with being shot. You may remember the "Cod Father" case. One of the largest commercial fishing enterprises in New Bedford was finally busted after decades of systemic overfishing and fraud.

All easily prevented by having NMFS Observers aboard the vessels. And NMFS Enforcement at the dock when you try to cheat.

I live on Cape Cod and most residents will never catch a cod off their beaches because the cod fishery has been destroyed by overfishing. Read: "Cod" by Mark Kurlansky.

I sold that trawler and never looked back. As far as I am concerned that fishery is one giant criminal enterprise. I wanted no part of it.

The Supreme Court today reminds me of young people who read Ayn Rand for the first time. Sure, let the Midas"s of the world do their thing because that is enterprise in its purest form. Government interference just drags down their supernatural ability to do good.
Hogwash.

GE dumped millions of gallons of PCBs in the Hudson River and my state Massachusetts and Jack Welch, GE's Midas, brilliantly got the company off the hook of having to clean the %#$@ up. Garbage loans were bundled into AAA securities and sold after Regan AND Clinton gutted banking regulations. That turned out well huh?

Just like the folks who think Communism is great, "from each according to their abilities, to each according to their needs" the simple factor of human nature is left out. And in turn we end up with the Stalin's and Pol Pots.

James Madison, the "Master architect of the Constitution" said it best: “If Men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and the next place, oblige it to control itself.”
Thank God men like Madison arsed themselves to form our government, and not some of the bought and paid for shills who populate SCOTUS today.

Currently, this moment, I am jogging my vessel after catching over 100 tons of Mackerel last night. The east coast will never again see fishing like that in my lifetime. Properly managed, by a government agency with teeth, it would have.


Last edited on 30 Jun 2024, 15:04, edited 2 times in total.”

Sounds like antidemocratic ranting to me. If mandatory observers are needed to properly regulate fishing off Cape Cod as is necessary and desirable, then proper regulations should be passed. The Courts decision doesn't say that observers can't be required on the East Coast or anything remotely like that.

 

[Palmpilot]

... 'make up rules as they go and not be challenged about it'...

Sounds like the Supreme Court lately.

 

[mryan75]

If with 'anything' you mean 'make up rules as they go and not be challenged about it', then yes they won't be able to do 'anything'.

All they lose is the ability to say 'because we said so, that's why!'

This is not a serious response and shows a fundamental lack of understanding of what Chevron said:

The power of an administrative agency to administer a congressionally created program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress. If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.

When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency's policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges—who have no constituency—have a duty to respect legitimate policy choices made by those who do. The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones: "Our Constitution vests such responsibilities in the political branches."

— Chevron, 467 U.S. at 843–44 (internal quotation marks, alterations, citations, and footnotes omitted).

 

[Palmpilot]

I've heard that the decision requires jury trials for civil penalties. Is this true?

 

[X3 Skier]

I've heard that the decision requires jury trials for civil penalties. Is this true?

I believe that is covered in another case about the SEC acting as Judge and Jury with no recourse to a Jury Trial in a Court of Law. Not being a lawyer or any desire to be involved in anything remotely related, I defer to others who are or do.

 

[sourdough44]

I’m still advocating for the very traditional fuel can. You know, a pour spout on one side, an air vent on the other. I blame EPA regulations. I’m being serious when I say I’ve never seen more spilled fuel than with newer ‘epa’ cans.


Don’t worry, all my fuel cans are older, respouted, or ‘modified’. I’m just trying to help my brethren.

 

[Matthew]

I've heard that the decision requires jury trials for civil penalties. Is this true?

That was another case, Jarkesy:

https://www.supremecourt.gov/opinions/23pdf/22-859_1924.pdf

An SEC Administrative Law Judge ruled against someone. I think the argument was that since the charges amounted to a civil violation that he should have had the option of a jury trial.

Edit: I just read through it again. Until 2010 the SEC had to go through Federal court for civil penalties. The rules changed in 2010 and allowed the SEC to use an Administrative Law Judge, bypassing the courts and a jury trial.

 

[172andyou]

I’m still advocating for the very traditional fuel can. You know, a pour spout on one side, an air vent on the other. I blame EPA regulations. I’m being serious when I say I’ve never seen more spilled fuel than with newer ‘epa’ cans.


Don’t worry, all my fuel cans are older, respouted, or ‘modified’. I’m just trying to help my brethren.

FWIW, this is the best can I've ever owned in my entire life, and I feel confident it wouldn't have been invented without emissions regulations creating a market for it.

 

[Palmpilot]

That was another case, Jarkesy:

https://www.supremecourt.gov/opinions/23pdf/22-859_1924.pdf

An SEC Administrative Law Judge ruled against someone. I think the argument was that since the charges amounted to a civil violation that he should have had the option of a jury trial.

Edit: I just read through it again. Until 2010 the SEC had to go through Federal court for civil penalties. The rules changed in 2010 and allowed the SEC to use an Administrative Law Judge, bypassing the courts and a jury trial.

You're right, it was the SEC case about which I heard it. I'm wondering if this will affect the FAA.

 

[Baked Potato]

You're right, it was the SEC case about which I heard it. I'm wondering if this will affect the FAA.

Perhaps if you're facing a civil penalty involving fines. I don't think it will affect forfeiture of certs/medicals/etc when rules are broken (is my understanding).

 

[jbarrass]

FWIW, this is the best can I've ever owned in my entire life, and I feel confident it wouldn't have been invented without emissions regulations creating a market for it.

View attachment 130887

These are nice. Also Racing Jugs (@Amazon)

 

[172andyou]

These are nice. Also Racing Jugs (@Amazon)

Yeah, used those a bunch. I don't like them as much.

The one I referenced shuts off automatically when you're full. It doesn't start pouring until you press the button. It doesn't require you to hold the weight of the can while filling.

Racing jugs mostly make you rest the jug on your shoulder, control it with one hand, feed the hose into the tank with the other hand and will overflow if you have more gas in the jug than the plane/mower/whatever will hold. Ripper spouts can make them more useful, but that's not what most people are thinking when they get racing jugs.

 

[Pinecone]

I've heard that the decision requires jury trials for civil penalties. Is this true?

No. But it allows them and does not restrict the court to what the agency decided.

 

[Bob Noel]

Sounds like the Supreme Court lately.

if one doesn't understand the US Constitution or read the actual decision

 

[Palmpilot]

if one doesn't understand the US Constitution or read the actual decision

Have you read it?

 

[Sierra1]

FWIW, this is the best can I've ever owned in my entire life, and I feel confident it wouldn't have been invented without emissions regulations creating a market for it.

View attachment 130887

If I had to pick one, that’s the one. All the others are super ****ty. That one does suck for vehicle use as you gotta have a funnel though.

 

[Daleandee]

FWIW, this is the best can I've ever owned in my entire life, and I feel confident it wouldn't have been invented without emissions regulations creating a market for it.

View attachment 130887

This should probably be it's own thread but I'll hijack this one enough to say that what you have there is exactly what I do not want. I have several of these with a hose spout:

 

[Llewtrah381]

I’m still advocating for the very traditional fuel can. You know, a pour spout on one side, an air vent on the other. I blame EPA regulations. I’m being serious when I say I’ve never seen more spilled fuel than with newer ‘epa’ cans.


Don’t worry, all my fuel cans are older, respouted, or ‘modified’. I’m just trying to help my brethren.

I don’t disagree re the preferred fuel can - I have 3 5-gal ones for my gyro plus a 2-gal for my mowers and I hope they never die.

I’ll stand by my earlier statement: most regs are because someone did something stupid. I’d be willing to bet that’s fundamentally the issue here.

Freedom isn’t free: we have regs because others exercised their freedom in a way most of us thought nobody would be foolish enough to try.

 

[flyingcheesehead]

The one that probably bugs me most is the FAA's ever-expanding interpretation of what constitutes "compensation." I'd like to see something that puts some bounds around that one before some unsuspecting pilot gets busted for taking a date flying in hopes of a future benefit.

You've said something about this twice already in this thread, and I would like to know what has expanded.

I've been flying for over 20 years, and the interpretation of compensation has not materially changed in that time, to my knowledge. My primary flight instructor went over all of it quite thoroughly... The only thing that I remember changing isn't really compensation - It's that, while I can still be compensated for a business trip where the flying is unrelated to the business, I can no longer take other employees as passengers.

Can you please explain, with citations, this "ever expanding interpretation of what constitutes compensation"?

Let's be a little more specific. This takes the [specific power to write new legislation in the form of rules] away from "unelected, unaccountable" [agency leaders and personnel] and puts it pack in the hands of the elected legislative branch.

Unfortunately, the elected legislative branch has demonstrated their inability to get anything at all accomplished. This ruling would seem to place a lot more work in the hands of the courts (who may not have the capacity for it) and the legislative branch, who will do nothing. It doesn't give me a good feeling - I think a lot of unsavory characters are going to get away with a lot of things because of it.

I’m still advocating for the very traditional fuel can. You know, a pour spout on one side, an air vent on the other. I blame EPA regulations. I’m being serious when I say I’ve never seen more spilled fuel than with newer ‘epa’ cans.

I thought it was California, not the EPA. But yes, I spill fuel damn near every time I use one of the newer "spill proof" cans. And now they have those %*$)@*_% screens in them that prevent me from using a siphon hose, which is what used to be the most spill-proof method of using them.

 

[Llewtrah381]

I may be wrong but this is the kind of thing I suspect will be happening very regularly because of the Chevron decision, especially for any new regs:

Supreme Court rejects challenge to federal workplace safety agency, leaving OSHA off its docket

OSHA has been used to protect workers from falls, fires, electric shock, being hit by foreign objects, asphyxiation, chemical burns and more.

www.usatoday.com

Yes, the case wasn’t taken up by the court but things will be halted until even a decision not to take it up is made.

And a Congress focused on getting the audio of interviews it already has transcripts of and holding people in contempt for pretty spurious stuff doesn’t seem like one that can muster the focus needed to write sensible rules needed day to day.

 

[172andyou]

If I had to pick one, that’s the one. All the others are super ****ty. That one does suck for vehicle use as you gotta have a funnel though.

That's a very fair point. The can I like is the one I like because I'm exclusively filling mowers, ATVs and chainsaws. i.e. things that you can rest the can on. For that, there is no better can. They are easier to use than racing cans and the auto-off when the fill is complete means no spills.

If you're filling a vertical port, especially one at waist level where you don't have to awkwardly lift the can, balance it and somehow insert the house without spilling, the racing cans are a great option. Bonus points if you don't have to worry about over filling, which is a reality for everything I fill. All of my tools have fuel tanks much smaller than the can they are being filled from.