back to article Brace for new complications in big tech takedowns after Supreme Court upended regulatory rules

The US Supreme Court has ruled that the judges should no longer defer to government agency interpretations of ambiguous laws – a decision with potential ramifications for some of the biggest cases against tech companies. That deference, known as Chevron deference, dates to 1984 when the court ruled in Chevron v. Natural …

  1. elDog

    No surprise. This is just a way for the corporate camel to put its nose under the justices robes.

    In the last few years the corporatists have been flooding the courts with amicus briefs - really just lobbying for their positions. This removes the impediments of the expertise of the regulatory staff to point out problems in these briefs.

    There are so many good discussions about how this will eviscerate almost all regulation in the US. One has to wonder who is hoping for a totally non-functional government.

    1. UnknownUnknown

      Re: No surprise

      Irony does exist in the USA.

      “Today's decision will level the playing field for taxpayers and government agencies," declared Joe Bishop-Henchman, executive vice president of the NTUF..”

  2. Dostoevsky

    It's actually good.

    Now Congress will have to do its job and *legislate.* It can't delegate its responsibilities to unelected bureaucrats who aren't accountable to the citizens. Regulation will be completely decided by elected representatives.

    Will this cause short-term problems? Probably. But in the long term, it keeps our country safe from ever-increasing levels of bureaucracy.

    In what universe was it OK for an agency to decide the people it serves must pay its wages directly? That's like cops collecting protection money on the streets...

    1. diodesign (Written by Reg staff) Silver badge

      Re: It's actually good.

      I get that in theory ensuring rules are set by elected lawmakers and adjudicated by judges is a fair thing.

      But in practicality, can the court system really handle the load? Can watchdogs really afford to enforce rules if they're just going to be challenged in court every time? Can we expect lawmakers to pass detailed and technically correct legislation all the time? Isn't deferring to scientists and experts a fair thing, too, with parameters set by Congress?

      Bear in mind the Supremes got nitrous oxide confused with nitrogen oxides in their separate Ohio v EPA ruling :( Baking those kinds of mistakes into law could have quite disastrous effects.


      1. Yet Another Anonymous coward Silver badge

        Re: It's actually good.

        Surely an East Texas jury is the correct place to decide if Thalidomide is good for you or if a Boeing door plug really needs all those bolts.

        1. Peter Gathercole Silver badge

          Re: It's actually good.

          Even though I was one of the people who's mother was offered Thalidomide while expecting me, but refused, so grew up knowing several people who were afflicted, I would point out that Thalidomide is still be prescribed, just not to women of child-bearing age.

          Apparently, is still a very useful anti-nausea drug, often used in conjunction with other drugs that cause nausea.

          Not going to say anything about Boeing.

          1. blackcat Silver badge

            Re: It's actually good.

            I believe it is also used as a cancer treatment as it stops the tumours from making blood vessels.

          2. Muscleguy

            Re: It's actually good.

            Turns out thalidomide is chiral and the original drug included both forms. Only one of which causes birth defects in humans. A way was found to remove that form making the drug safe.

            We still do not know how thalidomide acts on limbs as it has no effect in mice or chick embryos the main limb development model systems. There are theories but we have no ethical way to test them.

      2. I ain't Spartacus Gold badge

        Re: It's actually good.


        But in practicality, can the court system really handle the load? Can watchdogs really afford to enforce rules if they're just going to be challenged in court every time?

        Not my county or legal system, so maybe I shouldn't comment. But US courts are precedent based. So the people being regulated should in theory only get to challenge the regulation once and then there'll be a definitive interpretation. Which other cases should then defer to.

        Of course the US have a constitution, and a Supreme court who like to wait 50 years and then change their mind on what the constitution says. Which is rather different to how things work in the UK. But if you give governments the right to interpret the law, they're always going to interpret it in their favour.

        This should (were the political system working properly) force Congress to pass laws that do what they are supposed to.

        I don't know the details of the fishing case, so I shouldn't comment. But it seems pretty outrageous that a government department can just magic up the right to charge people to enforce a law - when the legislation doesn't specifically say that they can. You expect to pay a fee to get your license to do something, you don't then expect an inspector to turn up to check up on you and say, "while I'm here - you're paying my wages and buying me lunch." Although it's a bit different if that legislation had been around for ages, and so everyone knew the score when they got into it.

        1. Dostoevsky

          Re: It's actually good.

          Yes, stare decisis is important, but it's not the final arbiter. Remember, the Court ruled that people of African descent couldn't be citizens once upon a time. (Dred Scott v. Sandford) That precedent was overruled when the Court found it unconstitutional, and when an amendment was passed—thank heavens.

          Your last paragraph is very well said! The price being set by unelected bureaucrats is taxation without representation—exactly what we are trying to avoid.

          1. Anonymous Coward
            Anonymous Coward

            Re: It's actually good.

            The IRS doesn't set taxes, it attempts to interpret the conflicting rules set by Congress and the only people who face and will continue to have to face the full efforts of the IRS are employees.

        2. Anonymous Coward
          Anonymous Coward

          Re: It's actually good.

          The reason the fishing boats had to pay was because Trump ordered it so, likely intentionally to force the planned lawsuit funded by Koch (who AFAIK doesn't have any commercial fishing interests himself but plenty of interest in fighting taxes and regulations).

      3. UnknownUnknown

        Re: It's actually good.

        It will just be mired in court proceedings forever - despite SLAPP legislation.

      4. Dostoevsky

        Re: It's actually good.

        If the federal courts are overloaded with regulatory cases, I would conjecture that the federal government is regulating too many things. There are a lot of topics that would be best handled at lower levels.

        Many people don't grasp the point of a *federal* republic—power stays close to the people. And experts can absolutely still play a role through consultation and amicus curiae procedures.

        I think it's a different mindset than Europeans are used to, hence the confusion in the replies. The states' powers are more similar to those of nations than, say, the UK's counties.

    2. Claptrap314 Silver badge

      Re: It's actually good.

      The process is and will be deeply flawed no matter how you cut it. I remember watching a documentary about, I believe, a fight between the EPA & congress wherein the EPA had reverse the clear language of the law. People at the EPA were recorded as saying that they could simply wait congress out.

      At the same time, we've got a dizzying number of cases where the courts have made deeply flawed decisions on the merits. The first problem (in my mind) is the non-transferability of expertise. The courts are experts at arguing precedent, and, really, almost nothing else. While they can, and, do appoint special masters to investigate technical aspects of a matter, that really only brings out the fact that, despite their whinings to the the contrary, our court system has become deeply political. And I'm not talking about the last five years. It's been a huge problem for decades, and we're finally seeing the inevitable ideological swings that that entails.

      But that gets us back to the agencies, and their "expertise". Again, the agencies, are invested first in their own power. Then, whatever ideology is (currently) holding sway. They are substantially less deferential to the Congress than the courts have been, and given how only a few figureheads are actually appointed, they are even less accountable than the courts.

      So, the Supremes have clipped the wings of the agencies this time. I fully expect, assuming I am privileged to live another four or five decades, to see this case reversed because 1) congress doesn't want the voters holding them accountable and 2) the courts are going to make idiots out of themselves. And I expect that decision to be eventually reversed because the agencies are going to be even more imperialistic than they are right now.

      1. Doctor Syntax Silver badge

        Re: It's actually good.

        Looking at it from the outside that;s how it seems to me except that it's not only the appointment of the judges that's politicised. Officials around that, such as the Attorneys General are elected and therefore inevitably political offices. And that runs right up to the very top in that the head of state is also a political office. The US has nothing to keep politics out of anything. Maybe it was put together by people sufficiently high minded to make impartial decisions (or believing themselves to be). If so they didn't allow for their successors not to be so.

      2. UnknownUnknown

        Re: It's actually good.

        In general places like the EPA/FTC employ proper accredited experts - scientists, engineers, statisticians - not quacks espousing homeopathy, anti-vax, book banning, nutritionalism, big oil no climate change etc …. and any God botherers.

        It’s a bad day for reason and facts.

    3. DS999 Silver badge

      Re: It's actually good.

      But lawmakers can't possibly catalogue everything that needs to be regulated today, let alone anticipate how things will change in the decades after a law is passed. Do they need to revamp the laws governing the EPA or FDA every year in response to new scientific findings - i.e. you figure out BPA is harmful so you decide they can regulate it but unless that law is passed they can continue using BPA to make baby bottles and there's nothing anyone can do about it? Meanwhile you'll have lobbyists in the plastics industry making bribes campaign donations to lawmakers to get them to leave that out, claiming BPA is being unfairly targeted. I mean, that worked for cigarettes for how many years?

      While I agree with what you say in principle, handing this authority to judges who are so dumb they think they should have the power to second guess FDA approvals of a drug, simply because it is used in abortion and the judge is personally opposed to abortion, means plaintiffs are going to be judge shopping like never before. Which means a flood of cases clogging the appeals courts to slap down the most egregious behavior. That'll mean years of additional time before the worst abuses are curbed, because people like Koch who don't care if the world burns so long as they get richer will spend freely on lawyers if it means getting away with years of additional environmental etc. abuses and thus getting years of additional profit before a court ultimately shuts them down. And that assumes the courts will believe what experts in the field are saying, versus the highly paid stooges the plaintiffs will hire.

      Conservatives used to want to appoint people to the court who would respect precedent, not grab more and more power for the judicial branch.

    4. abend0c4 Silver badge

      Re: It's actually good.

      Now Congress will have to do its job and *legislate.*

      I'm not an American, so I may have misunderstood the situation, but it appears from afar that the US constitution went out of its way to make it difficult for the federal government to do a great deal - the separation of powers, the two houses and the explicit limits on powers were a direct response to monarchical rule. There are relatively rare points in American history when the conditions have been right for significant legislative change and constitutional change is very rare indeed. The present polarisation of politics means that there's effective stasis.

      There's little point in discussing the propriety of which branch of government ought to be making rules when it's clear there is no political consensus in the country over what those rules should be. And given the stasis, those with particularly loud voices are finding, despite the constitution, novel ways of getting their way which may ultimately undermine the entire edifice.

      No system of government can cope with a nation split in two - or spilt 52/48 - especially when it is split largely on irrational lines.

      1. Dostoevsky

        Re: It's actually good.

        > ...US constitution went out of its way to make it difficult for the federal government to do a great deal...

        Exactly. The retrenchment clauses, supermajority, and approval of amendments by the states' legislatures all keep the federal government from changing its powers.

        Of course, FDR sidestepped all that by creating a whole host of agencies, some of which were declared unconstitutional by the SCOTUS. Then he threatened to pack the court, they shut up, and things have gone downhill ever since.

        1. Anonymous Coward
          Anonymous Coward

          Re: It's actually good.

          The last two presidents to run federal budget surpluses were Carter, then Clinton. It was Reagan who invented Voodoo economics.

    5. ComputerSays_noAbsolutelyNo Silver badge

      Re: It's actually good.

      I applaud your optimism in your belief that the judges power to resolve ambiguous laws will lead to less ambiguous laws in the first place.

      1. Ken Hagan Gold badge

        Re: It's actually good.

        They didn't say they were optimistic. They merely pointed out that this is the way it was always supposed to work.

        Legislators are supposed to write laws that clearly cover the common cases and show an intent for the compkicated ones. That leaves courts the task of judging the hard stuff. The latter task should never have been farmed out to agencies.

        If some laws are so badly framed that we get backlogs in the courts, lawmakers have the power (and duty) to amend the law. It sounds like, prior to this decision, that amending function was being done (if only implicitly, by deciding each case) by agency staff who are neither elected nor judges.

        1. UnknownUnknown

          Re: It's actually good.

          Guidelines and rule from technocrats/experts… seems ideal. No political interference.

          I’d prefer my heart surgeon to be an accredited expert, not an appointed former lawyer.

          1. bufferDuffer

            Re: It's actually good.

            Yeah - and i'm sure those experts are incorruptible...just beacons of integrity *cough*Fauci*cough* and wouldnt twist regulations to punish political enemies or pursue socio-policitcal religious dogma u nder the pretext of their 'expertise'

        2. doublelayer Silver badge

          Re: It's actually good.

          And that's what they did. They wrote a law expressing what they wanted to happen and specifically named a group which was supposed to encode that law into specific regulations and keep them updated. It's remarkably similar to software: someone writes an HTTP spec, which tells people how to talk to HTTP servers, but they leave the decisions about what it will do in certain conditions to the software writers so it can better match intended behavior. That means, for example, that when a new change to communications technology happens, a regulator can approve that change without having to take the whole spec to the legislators and say "I know you don't understand any of the stuff in this, but we would like you to paste it into a law and then pass it".

          The normal procedure would be to check whether the regulations passed actually match the authority the law gives. If the law says that the regulator can require fishing boats to carry regulators, but doesn't give them free rein to charge them for doing so, then their attempt to add that regulation doesn't match their powers and they would lose. That's not what happened here. Instead, the courts eliminated that power entirely, meaning that until legislators pass laws that include every detail of how something operates, the court can basically decide at the time whether to approve or deny any regulatory action based on no knowledge of the situation and with almost no limit. The power they're so worried about someone else having they've just taken for themselves. The situation wasn't good before, but it is no better now.

    6. Doctor Syntax Silver badge

      Re: It's actually good.

      "Regulation will be completely decided by elected representatives."

      At best elected representatives in the US are no more likely than those in the UK to have the necessary expertise. At worst they'll be subject to the Dunning-Kruger effects experienced by political parties and the lobbying influences. And in any event, no legislature can determine in advance the circumstances all the cases to which its laws will be applied.

      For several centuries one mechanism in England for fitting the theoretical to the real has been the judges' role in interpreting how laws should be applied to circumstances. That has been inherited by other legal systems including that of the US. Another mechanism in the UK has been the statutory instrument. Legislation makes provision for the relevant ministers - in effect their departments and whoever advises the departments - to make make detailed rules within that legislation which are then brought back to Parliament and so have at least the tacit approval of the elected representatives.

      In the UK system, therefore, the judges are then interpreting not only the primary legislation but also the secondary legislation which is still under the oversight of Parliament. They are not free to ignore the latter. I take from this report that in the US the agencies have much the same role in making rules under enabling legislation but don't have any mechanism analogous to the statutory instrument to put the authority of Congress behind them. Is this the correct reading.

      1. Anonymous Coward
        Anonymous Coward

        Re: It's actually good.

        The Dunning-Kruger effect lies at the centre of the problems being experienced by western democracies today. I don't want to go as far as saying universal suffrage is a mistake, but we are reaching (or may have already reached in some areas) the situation where the dangerously ignorant have too much influence over an inexpert majority. If the only exit from a field leads straight to an abattoir, sheep will take it...

        I believe in the democratic process of government - but it needs a mechanism to interfere with what an engineer would call destructive feedback loops.

        1. UnknownUnknown

          Re: It's actually good.

          Or dangerously in the pockets of Big Energy. See Trump and trying to get $1bn election money from page Big Oil in exchange for ripping up and rolling back environmental legislation.

        2. DS999 Silver badge

          Re: It's actually good.

          Dunning Kruger isn't a problem for the voters, it is a problem for those they are voting for. i.e. Donald Trump's ridiculous "I know more about xxx than the generals / scientists / economists" claims. He's too stupid to know how much he doesn't know. That's not a problem I see with the voters, most of them are very uncertain - their biggest issue with this election is they can't believe that these two candidates are being put forth as the best the two major parties can offer!

          Voters may be fooled into voting against their own best interest, have populism/herding get them to vote like those around them even if they aren't like those around them, etc. But what's the alternative to universal suffrage? Only those with a certain level of IQ or education can vote? Only property owners can vote? Only people with a certain skin color can vote? Only people who can pass the test that new citizens have to pass can vote?

          That last would be interesting, I suspect at least 80% of voters would fail if they took it without studying, but with study, practice, and multiple attempts just about everyone could rote memorize the answers without having to understand their meaning (just like everyone with a license has passed a driver's test once, even if you see constant evidence against that every day on the roads)

          Even if you were able to make the argument that some people who can vote today shouldn't be allowed to, you would have to specify exactly how qualified voters become so qualified and present a good case as why that situation would lead to measurably better outcomes for the country than letting everyone vote.

      2. I ain't Spartacus Gold badge

        Re: It's actually good.

        Doctor Syntax,

        You have a good point about statutory instruments. That I was thinking about as I posted my comment above - and probably should have thought of more.

        It's very hard when you try to look at other peoples' political systems, because the differences are often so tricky, and have such surprising effects.

        So a lot of our legislation makes provision for the follow-up statutory instruments - which can be changed more quickly and easily. But give more power to ministers and the civil service, as they're far less scrutinised by Parliament.

        One of the problems is that no political system operates how it's supposed to. So you then start applying sticking plasters. I think for a long time now, Congress can't agree to get stuff done - and so the Executive arm is increasingly making rules. But the problem with that is that these rules can then change as soon as there's an election. And you get one Presidential administration spending its first days over-ruling all the executive orders of its predecessor. Legislation has both the advantage (and disadvantage) of being slower and harder to overturn. Makes things more predictable, even if they're predictably wrong.

        1. Doctor Syntax Silver badge

          Re: It's actually good.

          "One of the problems is that no political system operates how it's supposed to."

          That's why I think it's a good idea to have a part of the system working at a level of being above (or outside might be a better word) politics taking a longer term view than the political cycle. We have whittled down the role of monarch to be just that in the UK whilst still, as head of state, embodying the nation as a whole - it really is a terrible fate to be born to and I have no envy at all of anyone who is. It's obviously undemocratic and arguably very effective.

          The judiciary is another such element; AFAIK the legal profession is able to ensure experienced and respected judges get to the top. It's been very noticeable that one of the ambitions of the DK wing of the Conservative party has been to restrict their influence as a result of the Supreme Court's rulings about BoJo; that in itself provides proof in the value of the system.

          I'd like to think the HoL would be another but it repeatedly gets stuffed with superannuated politicians and supporters. At least I can't see it being made an elected body as long as the HoC realises that as such it would be a rival institution although a party with a large majority might have a sudden rush of blood to the head. What I would like to see would be ex officio appointments such as the presidents (or whatever the title might be) of the institutes which represent the various professions,e.g. the various medical Royal Colleges. I doubt that would happen by law as a body those who demonstrably knew what they were talking about would be even more feared by MPs. OTOH if we have a run of sufficiently bright PMs to make such appointments it might simply become part of accepted tradition. Wishful thinking...

          1. I ain't Spartacus Gold badge

            Re: It's actually good.

            Doctor Syntax,

            One problem the US have is how politicised their judiciary has become. Or possibly has always been. I can remember complaints from the 90s about how the Supreme Court still had a Democrat majority despite there having been 3 Republican presidencies in a row. Too many US political issues become mired in arguments about arcane readings of a 300 year old document that often doesn't even mention the topic in question. At which point getting your judge onto the Supreme Court, where they might last 50 years might have more long-term effect than any law you pass. Although famously both parties have got their candidates into the Supremes only for them to consistently rule completely the opposite way to what was expected.

            In the UK our judiciary is much freer from that kind of political interference. However there is a danger that it becomes part of the establishment. Obviously, what could be more establishment than being a judge, but you need your judges to be independent of the people who run large organisations and the civil service - or you risk ending up with a technocracy. Where if an elected government does stuff the establishment doesn't approve of it first gets slowed down by the civil service and then gets thwarted by the judiciary.

            In the British Supreme Court judgement you cite about Johnson proroguing Parliament there is pretty good legal argument on both sides. The judiciary ruled in a novel way that intruded into an arcane area of the constitution that I'm not sure there was a great deal of basis for. Of course it was an unusual situation, and that's what happens in a precedent based constitution like ours. Sometimes judges effectively make new laws - but if Parliament doesn't like it, it can usually change it either back or to something else.

            Similarly in the Gina Miller case, which ruled that Article 50 couldn't be passed without a vote of Parliament. Again the same "establishment view" won over the elected government. the court made a novel ruling for a novel situation. The constitution is clear that Parliament votes on UK laws and that the government does negotiation with foreign powers. Of course the ruling had a good point, that leaving the EU then changed a bunch of laws, because it's not a normal treaty. But here, the experts were all wrong. The government, Gina Miller's team both testified that Article 50 was irrevocable without a unanimous vote of all the EU members (that was also the European Commission's legal position) - and so the court ruled that since triggering A50 would de facto change domestic law, then Parliament should decide. It's a perfectly logical position. The ECJ later ruled that the UK could revoke A50 unilaterally. Which pretty much ignored the text of the treaty in question - again judges probably going further than they should - but I do wonder what the Supreme Court would have ruled had they known that? It might have changed the Parliamentary situation completely and had huge effects on the outcome of the constitutional crisis over Brexit.

            I guess my point here is that judiciary needs to check the executive. But it needs to be careful. Too much judicial activism can make the courts so controversial the politicians are tempted to take drastic action, because they keep being hamstrung by people who lost the election but making an end-run to keep fighting in the courts. However historically a lot of our laws have stemmed out of judicial activism. A lot of early legislation on food standards stemmed from a court case about food poisoning setting a precendent and Parliament having to run to catch up - and broadly implementing the law as the judges had made it.

            I guess the point of checks and balances is that it has to balance. Which means that the judiciary have to show utmost restraint, as they're not answerable to anybody once they've got the job. Which is dangerous power, that it can be very easy to abuse - even when you think you're acting for the best of reasons.

            As for the House of Lords it still does a pretty good job. It was better when it was less democratic, becuase the ex politicians were even more out-voted by the old aristocracy and the people elevated for doing good works or generally being honoured for having been prominent for a long career. But most of the best work from the HoL has been in the committees anyway. Sometimes it delays legislation when the government gets too big for its boots - but a lot of good work is done by subject matter experts who get onto the committees and scrutinise legislation in detail. They often get their work taken up by the government and added to legislation, which increases the quality of our laws. This works less well in controversial areas though, where the government tends to try and fight off the amendments, although partly that might be because many of the amendments aren't trying to fix bad draughting, but trying to change the meaning.

            1. Anonymous Coward
              Anonymous Coward

              Re: It's actually good.

              "As for the House of Lords it still does a pretty good job. It was better when it was less democratic, becuase the ex politicians were even more out-voted by the old aristocracy and the people elevated for doing good works or generally being honoured for having been prominent for a long career."

              Steady on there - you seem to be saying that democratically elected representatives don't always work in the best interest of the country and population. That's something I've been saying and getting downvoted on a number of forums. In my opinion, as someone who has seen many decades of politics in the UK, the HoL (coupled with our constitutional monarchy) is the saving grace of our political system. Not perfect but has put a brake on some of the excesses when parliament becomes strongly polarised - tempering the idealism of the extreme right and left. By not being elected every few years, there are enough HoL members who have experience, are independent, competent and are able to oppose popular* views (not all, but enough to make it work).

              Unfortunately (again, in my view) left-pondians don't have that safety net as their whole legislature is elected and subject to pleasing whoever shouts the loudest. And the people who fight the hardest for power are the very ones who should never be given it!

              *Popular is not a synonym for correct or best.

              1. Jellied Eel Silver badge

                Re: It's actually good.

                Steady on there - you seem to be saying that democratically elected representatives don't always work in the best interest of the country and population. That's something I've been saying and getting downvoted on a number of forums. In my opinion, as someone who has seen many decades of politics in the UK, the HoL (coupled with our constitutional monarchy) is the saving grace of our political system.

                I think this is one of those theory vs practice things. We elect MPs to represent us. They end up tasked with things that are far, far outside their area of expertise. Perhaps the most (in)famous example is Ed Milliband, who gave the UK the most expensive and destructive piece of legislation in UK history, the Climate Change Act. Well, he had help from Friends of the Earth drafting that. Most notably Bryony Worthington, who was promptly made a Baroness to help drive that through the Lords. Oh, and she also runs an 'environmental consulting' group on the side.

                But in theory, Lords reforms allowed experts, or just experienced people to be appointed who, along with committees and other experts could scrutinise legislation thrown across from that other place and amend or reject it, if necessary. In practice, it's another way to stack the decks and ensure bad legislation passes. The US Supremes got nitrogen wrong, but quickly amended it. The Climate Change Act got carbon wrong, but that's since morphed into the even more destructive Net Zero.

                Governments can still repeal legislation, a process the Blair government made even easier with the Regulatory Reform Act. Courts can still challenge legislation, and the UK has a formal process to bat legislation back to government, if it's shown to be unworkable or unenforceable, but I don't know if the US has a similar process. Presumably that would be the Supreme Court ruling legislation is unenforceable, or unconstitutional, so it would be back to the US legislature to revise their legislation.

      3. Yet Another Anonymous coward Silver badge

        Re: It's actually good.

        >At best elected representatives in the US are no more likely than those in the UK to have the necessary expertise.

        No problem, the companies funding their campaign will have all the expertise necessary.

    7. CrackedNoggin

      Re: It's actually good.

      Fortunately because congress people are so aware of their own lack of expert knowledge, and not susceptible to being influenced by campaign contributions, it will just work.

    8. pomegranate

      Re: It's actually good.

      The legislature makes traffic laws. The stoplight interprets those laws to decide when to turn red and green. Laws should are written to guide, but not micromanage, bureaus.

      Reserving those decisions to a judge changes the meaning of laws post hoc.

  3. W.S.Gosset Silver badge

    Separation of Powers

    Chevron Deference deliberately broke the Separation of Powers.

    The Court gave the Executive Legislative power AND Judicial power.

    Essentially, within the general umbrella scope of any given legislation, Chevron Deference gave the unelected public servants the same power as Rome gave its emergency Dictators. But not for 1 year: permanently.

    1. W.S.Gosset Silver badge

      Re: Separation of Powers

      Separately, it's concerning that the article spins misleadingly, or that Thomas is extraordinarily unaware of basic legal & civil policy principles.

      For example, it's misleading to elide key facts. Eg, leaving out that the fishing company Loper Bright Enterprises was being charged over US$ 700 per day for Federal monitoring, and that the original Federal law mandating monitoring did NOT intend let alone authorise fees, but 37 years later the National Marine Fisheries Service unilaterally changed the law. Under Chevron Deference there is no appeal.

      Loper is a family company, not a giant multinational conglomerate. The unelected public servants unilaterally legislated to drive-out NON giant multinational conglomerates.

      And to close with these quotes as key takeaways of wicked hijack by the Judicial Branch is just boggling:

      >a role this Court has now claimed for itself

      >judges all over the county will be called upon to interpret ambiguous laws

      This is --along with ambiguous facts-- literally and precisely their JOB, their PURPOSE, their civil FUNCTION.

      1. Jellied Eel Silver badge

        Re: Separation of Powers

        This is --along with ambiguous facts-- literally and precisely their JOB, their PURPOSE, their civil FUNCTION.

        Indeed. The Judiciary is the body that should determine the law, a point already enshrined in most democracies constitutions, formal or informal. Sure, it'll put pressure on the US legal system, but this is how it's supposed to work. It prevents overreach and hopefully will result in better legislation. I've read a few Supreme Court rulings, and they've used experts to help create those rulings. Sure, they've made mistakes like the nitrogen one, but those have been quickly corrected.

        I also like the way the Supreme Court works, being a semi-adversarial system with the dissenting opinion. Make argument for/against whatever they're ruling on and the best argument wins. Which also means if more cases end up at the Supreme Court, there may need to be changes, which would be fun to implement. Maybe it'll end up with multiple teams so cases can be worked on in parallel. Then the usual politics of whether the Supreme Court has been stacked for/against whoever is grumbling.

        1. Yet Another Anonymous coward Silver badge

          Re: Separation of Powers

          Do you want dissenting opinions on political lines deciding the rules for nuclear waste disposal?

          We have elected police chiefs no reason why we shouldn't have elected civil engineers or air traffic controllers

      2. Dostoevsky

        Re: Separation of Powers

        My thoughts exactly!

    2. UnknownUnknown

      Re: Separation of Powers

      Why would you want to give the powers to unelected and uneducated/undereducated representatives. That’s a rocky road to #pitchforks

      Perhaps final oversight - for a political judgement/decision - but not assessment/analysis and domain knowledge expert tasks they are thoroughly unsuited to.

  4. amanfromMars 1 Silver badge

    Surely it is an undoubted universal given that ....

    .... with particular and peculiarly specific regard to AI2 and ITs LLLLMs, [Advanced IntelAIgents and Information Technologies Learned Large Language Learning Machines], there can never ever be a valid claim of human Earthly expertise to justify and support the following bodge job .....

    "Under Chevron deference, if an agency interpreted an ambiguous statute in one way, and others (presumably regulated entities) interpreted it another way, the tie would go to the agency – the courts would defer to the agency's presumed expertise," he wrote in a post last week. "Now, in the post-Chevron world, regulatory agencies will have to justify their interpretation of ambiguous statutes without the advantage of deference to agencies in case of a tie."

    All humanity can do is to share their experiences of the unsually delivered benefits and consequences of such a tempting imponderable and untouchable difficulty as any expertise is solely in the possession of the otherworldly and extraterrestrial. Any claim for such to be otherwise would clearly be a wanton speculative extra territorial land grab in/of a real virtual domain AI designed to be both free of and deadly dangerous to covetous trespassing humans. ... for an Alien Bug-Free Live Operational Virtualised Environment Zone .... with more than just a few more Brave New More Orderly World Ordered Worlds to boot and reboot.

    1. Biff05

      Re: Surely it is an undoubted universal given that ....

      Couldn't have put it better myself.

  5. Adam Inistrator


    "experts" dont decide at trials. They advise. In open court. Compare that to the opaque decisions behind closed doors in the government. A cute but naive trust in "experts" is going out of fashion.

    1. Doctor Syntax Silver badge

      Re: "experts"

      Ah, that use of quotation marks which allows for denigration without justification.

      1. I ain't Spartacus Gold badge

        Re: "experts"

        Doctor Syntax,

        But the experts don't always get it right either. And are sometimes subject to groupthink and office politics - where they try to exclude the awkward ones who disagree with the expert consensus. Even if those people are also experts.

        So you need a process to oversee decision making that allows for a wide variety of inputs - and then is followed by scrutiny.

        Otherwise we might as well just have a technocracy and have the civil service run the country. Which is as pronen to errors as any other system of government.

        I rmember reading Slide Rule by Nevil Shute at university. And the bits on the R101 disaster were interesting. His comments being that when the Air Ministry were judging the airworthyness of the commercially built R100 they ended up farming it out to their internal airship experts. Who were on the team building the rival government airship R101. So they were giving their information to the team who were literally in competition with them - the government having ordered a commercial and government airship to test against each other. But they were the experts available.

        I can't now remember if he had knowledge, or just speculated, that when it came to the airworthyness of the R101 - the same thing happened. The Air Ministry deferred to the guys building it to mark their own homework. A lot of those experts then died on the airship they'd created, as it wasn't airworthy. Perhaps if they'd got in Barnes Wallis from Vickers (chief designer on the R100) to comment - they might have been saved. But exertise sadly doesn't always counteract human failings.

        1. Doctor Syntax Silver badge

          Re: "experts"

          "But the experts don't always get it right either."

          True. But they've got the best chance, especially when compared to those who think they've no use for them. Unfortunately all too often they're the ones left saying "told you so". Maybe that's the ultimate measure of expertise.

  6. Bebu Silver badge

    Given some of the recent decisions of the SCOTUS...

    I have to wonder whether some of the actors were misdirected on their way to their engagement with the D'Oyly Carte company.

  7. Anonymous Coward
    Anonymous Coward


    Its all just neoliberal economic theory in action; as its originators stated, the primary requirement for prosperity is to ensure a truly free market for all products and services, which necessitates dismantling any and all democratic institutions since ( as Adam Smith recommended ) they always impose regulations on markets.

    Still, nice to see that SCOTUS trust King Biden not to do anything untoward with his new status before the Trump dynasty is installed.

    1. ecofeco Silver badge

      Re: Neoliberals

      This Adam Smith?

      "A criminal is a person with predatory instincts who has not sufficient capital to form a corporation.Most government is by the rich for the rich. Government comprises a large part of the organized injustice in any society, ancient or modern.Civil government, insofar as it is instituted for the security of property, is in reality instituted for the defence of the rich against the poor, and for the defence of those who have property against those who have none."

      "No society can surely be flourishing and happy, of which the far greater part of the members are poor and miserable. It is but equity, besides, that they who feed, clothe and lodge the whole body of the people, should have such a share of the produce of their own labour as to be themselves tolerably well fed, clothed and lodged."

      "It is not very unreasonable that the rich should contribute to the public expense, not only in proportion to their revenue, but something more than in that proportion."

      Adam Smith repeatedly warned about unregulated capitalism, and is often taken out of context as supporting unfettered capitalism, which he most adamantly, DID NOT.

      1. Boris the Cockroach Silver badge

        Re: Neoliberals

        What about the Adam Smith who said (memory suffers here)

        That the prosperity of a company depends on rewarding the managers/innovators, the investors and the workers, because without 1 of these 3 , no company can succede.

        and I dont think he said that the ideal model was to hugely reward investors/managers, and pay workers minimum wage and expect the government to bring thier wages upto a livable standard.

  8. sketharaman

    Chevron Deference

    Kudos to SCOTUS for clipping the wings of Sinecure Bureaucrats and Rogue Regulators. While the judiciary also has unelected officials, the big difference between the unelected officials of regulatory agencies and courts is that regulatory agencies can and do poke their nose in business whenever they feel like whereas courts get involved only when there's a dispute.

    1. ecofeco Silver badge

      Re: Chevron Deference

      Enjoy your future poisoning and harm by corporations without recourse.

  9. Justthefacts Silver badge

    Democracy News

    Shocking news that the US Supreme Court has deemed the US President has immunity from the law.

    In other news, *all* MEPs have immunity from criminal prosecution and arrest. Currently *eight* MEPs are using/abusing this power, with warrants out for their arrest which are in abeyance only because they are MEPs. Not just Eva Khaili (“only” a fraud case of 800k). This isn’t conspiracy theory allegations, or a couple of back-handers (although there are literally dozens of those). These are actual convicted criminals, of very serious offences, often violent.

    There’s Fredi Beleri, currently convicted and in prison for literally paying cash for votes, who is about to be released *in order to* take up his seat in European Parliament. Ilaria Salis, Green-Left alliance, released from house arrest for attempted murder of political opponents (several victims with life-changing injuries). Alexis Georgoulis has avoided his trial for rape. Ioannis Lagos has *finally* lost his seat in the election, after years of avoiding prison having already been convicted, to serve his *14 year sentence* for conspiracy to murder and torture.

    1. ecofeco Silver badge

      Re: Democracy News

      "When small men cast long shadows, the sun is about to set."

  10. SammyB

    Experts? what experts.

    Experts? what experts. Old joke, ask ten experts and get 11 opinions. After the last set of health experts destroyed the economy, I would prefer a laymen judge.

  11. FuzzyTheBear

    What a mess

    At this point in time the USA is a massive mess.

    Thank goodness i don't live there. I read the Washington post and a half dozen more reliable papers every day and i am really happy not to have to deal with the situation in the USA daily. It used to be a country we looked up to , now , it's to vomit. SCOTUS made a mess of things , again , the past few months and the way it's going headed for civil war. If you live outside the US , like i do , we're lucky and should count our blessings , so to speak. Good luck to those who live there.

  12. M.

    Back to As it Should Be

    The United States has functioned without this "Chevron deference" for most of its existance. Our world didn't end before, and it won't end now.

    The US Constitution holds that power NOT GRANTED to the Federal Government is reserved to the State or to the People. We do not believe that arbitrary power rests in EITHER the Federal/State governments OR the Judicial Branch (courts).

    If WE didn't grant some unelected bureaucrats from some federal agency a specific power (such as the ability to enact arbitrary rules, fees and fines, etc), then WE reserve that right.

    No Federal/State agency can "make up" laws and enforce them in our courts.

    This is now as our Constitution was intended, and back to how it always has been for almost the entire history of our country.

    We'll survive!

    1. M.

      Re: Back to As it Should Be

      For reference - many aspects of running a government rely upon the prudent decisionmaking of non-elected officials.

      There is an entire branch of the US government designated to "interpret laws" in order to carry them out. (Our Executive Branch.)

      The setting aside of the "Chevron deference" (presumption that "government is always right") restores the US Constitution's "presumption of inequality" between the government and The People - where The People automatically trump government, unless government was SPECIFICALLY GRANTED some power by those very people.

      When a person appeals an arbitrarily-emplaced rule/regulation/code/fee/fine/(etc.), we need this presumption of preeminence over our government (unless we specifically granted the opposite) or else our laws aren't under our own control.

      In cases of abusive, absurd or uncontrolled behavior amongst our peoples, we leave congress to act - to draft and vote on new laws that correct such egregious situations.

      In America, Government is not our nanny, nor our King. Americans don't need to ask our government for permission. Rather, the situation is absolutely and completely the opoosite.

      Our government needs to ask for OUR permission (through enacting laws). Removing this "Chevron deference" restores the constutional mandate, and reasserts the power of The People OVER AND ABOVE that of the US Government.

      When we follow the original intention of our US Constitution we'll be just fine!

      1. Boris the Cockroach Silver badge

        Re: Back to As it Should Be


        "When a person appeals an arbitrarily-emplaced rule/regulation/code/fee/fine/(etc.), we need this presumption of preeminence over our government (unless we specifically granted the opposite) or else our laws aren't under our own control."


        The FAA mandates that new aircraft have to pass flight testing at considable expense to the manufacturer, and comes up with rules for such flight testing without regard to congress or the people.

        US aircraft builder says what you do and all FAA flight testing rules are ruled invalid in court as they have never been approved by congress or the people.

        Are you flying boeing or airbus ?

    2. ecofeco Silver badge

      Re: Back to As it Should Be

      The Commerce Clause of the U.S. Constitution.

      Learn it.

      It grants Congress, unlimited and exclusive power to regulate business, without exceptions. Not the president. Not the courts.

      SCOTUS has overstepped, as they have done many times in the past.

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