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fool of sound posted:Eh, the thing is that Chevron sucks. The executive shouldn't be able to just wilfully misconstrue the roles and authority of executive agencies as they are laid out by acts of congress. The problem of course is that our legislature is almost entirely non-functional and has been for going on half a century now and the courts are packed with right wing ideologues who are perfectly happy to legislate where congress fails to do so. Chevron deference has the escape hatch of "rational" or "reasonable" so you can't just have the Executive doing poo poo willy-nilly (unless SCOTUS agrees, but we're hosed either way in that case). When Gorsuch finally strikes down Chevron, it means that any Federal judge will be able to shut down the Executive's actions with a de novo review of a statute's ambiguity. Eliminating Chevron is absolutely one of those things that only benefits someone who is happy to drown the government in a bathtub.
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Oct 6, 2021 05:24
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Devor posted:Chevron deference has the escape hatch of "rational" or "reasonable" so you can't just have the Executive doing poo poo willy-nilly (unless SCOTUS agrees, but we're hosed either way in that case). Yes, I'm aware of why Chevron is a necessity in the current environment, and will remain so for the foreseeable future, but that necessity is a symptom of the dysfunction of the legislature and contributes the the extremely excessive power of both the courts and the presidency.
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Oct 6, 2021 05:30
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fool of sound posted:Eh, the thing is that Chevron sucks. The executive shouldn't be able to just wilfully misconstrue the roles and authority of executive agencies as they are laid out by acts of congress. The problem of course is that our legislature is almost entirely non-functional and has been for going on half a century now and the courts are packed with right wing ideologues who are perfectly happy to legislate where congress fails to do so. Chevron deference rules YOU SUCK
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Oct 6, 2021 13:26
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We just need a way to remove deference from some departments say like Labor, HUD and the EPA without blowing up the defense contractors.
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Oct 6, 2021 14:02
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fool of sound posted:Yes, I'm aware of why Chevron is a necessity in the current environment, and will remain so for the foreseeable future, but that necessity is a symptom of the dysfunction of the legislature and contributes the the extremely excessive power of both the courts and the presidency. I don't agree. Chevron deference is the appropriate rule. The reason it is appropriate is that government agencies regulating an area almost always have far more expertise in that area than the Courts or particular litigants do, in part because Courts seldom realize how severe their own lack of expertise is, and in part because particular litigants are, about half the time at least, strongly motivated to shift the law for their own benefit. I've done some limited regulatory law work and it is amazing how willing courts and litigants are to poo poo the bed for entire industries over absolutely trivial conflicts (often as petty as personal spats between opposing general counsels or whatever else). Regulatory law is often confusing and judges generally don't understand it and more importantly don't realize they don't understand it and don't realize they don't understand the downstream implications and effects of their decisions. The problems with Chevron deference are regulatory capture -- which is a problem with our current government generally in all branches, and is no better in the judicial branch than anywhere else -- and the general collapse of our social mores meaning that nobody is operating in good faith, but that's why it includes the "reasonableness" standard. There's nothing wrong with Chevron that isn't broadly wrong with our society & government as a whole. It is the correct rule.
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Oct 6, 2021 14:21
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Hieronymous Alloy posted:I don't agree. The 'reasonability' rule is a double edged sword, just like Chevron as a whole. While it does allow expertise to drive the decision making process, it also means there's little recourse when a change of president means sweeping changes for policy and enforcement, like "the EPA no longer brings suit against polluters" or "net neutrality no longer exists". Obviously, the other branches shouldn't be micromanaging executive agencies, but in a properly functioning government, the elected legislature would share in the responsibilities here, especially where major shifts in policy are concerned, and the courts should hold agencies to the spirit and letter of acts granting them their authority even if the current president doesn't like that agency and what it does.
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Oct 6, 2021 17:21
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fool of sound posted:The 'reasonability' rule is a double edged sword, just like Chevron as a whole. While it does allow expertise to drive the decision making process, it also means there's little recourse when a change of president means sweeping changes for policy and enforcement, like "the EPA no longer brings suit against polluters" or "net neutrality no longer exists". Obviously, the other branches shouldn't be micromanaging executive agencies, but in a properly functioning government, the elected legislature would share in the responsibilities here, especially where major shifts in policy are concerned, and the courts should hold agencies to the spirit and letter of acts granting them their authority even if the current president doesn't like that agency and what it does. Is your thesis that the American system of government sucks, and Chevron is just one of the symptoms? Edit: Because the last few posts have led with a comment about Chevron, but then recited problems that Chevron is meant to cure Devor fucked around with this message at 17:41 on Oct 6, 2021 |
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Oct 6, 2021 17:37
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Devor posted:Is your thesis that the American system of government sucks, and Chevron is just one of the symptoms? I mean, that's my thesis except for the part where I disagree about Chevron sucking. The problem is bad faith actors in the government. There isn't any better alternative to Chevron that doesn't make anything worse.
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Oct 6, 2021 17:42
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Devor posted:Is your thesis that the American system of government sucks, and Chevron is just one of the symptoms? My critique is that Chevron is a jury-rig to bypass the crumbling of the legislature's ability to govern. I recognize it's value at the moment, but also believe that offloading yet more of the responsibilities of lawmaking onto executive agencies, largely unchecked, is a serious threat in itself. The entire regulatory system of the country shouldn't be subject to potential sweeping changes every four years.
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Oct 6, 2021 17:57
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Devor posted:Is your thesis that the American system of government sucks, and Chevron is just one of the symptoms? It's not so much that the government sucks, it's that almost everyone who has entered the government since about the middle of the 20th century sucks
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Oct 6, 2021 18:03
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fool of sound posted:Eh, the thing is that Chevron sucks. The executive shouldn't be able to just wilfully misconstrue the roles and authority of executive agencies as they are laid out by acts of congress. Chevron deference does not allow the executive to "wilfully misconstrue the roles and authority of executive agencies" Literally it has to be a "permissive construction of the statute", it's not anything goes. It's "that's a plausible argument even if it's not one we would have reached but we will defer to you" it's not "oh you're reading it wrong on purpose well that's fine then"
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Oct 6, 2021 20:25
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fool of sound posted:My critique is that Chevron is a jury-rig to bypass the crumbling of the legislature's ability to govern. I recognize it's value at the moment, but also believe that offloading yet more of the responsibilities of lawmaking onto executive agencies, largely unchecked, is a serious threat in itself. The entire regulatory system of the country shouldn't be subject to potential sweeping changes every four years. Eh, not really. I get where you're coming from but administrative rulemaking is *extraordinarily* complex and there's basically no set of circumstances where it would be possible to run every interpretation of everything through the legislature on anything like a reasonable timeframe. What could be done, and probably should be done, is a recurring legislative approval process, say on a ten year timeframe, where legislatures could ratify or unratify the prior ten years of agency decisionmaking. Then you'd just need Chevron deference for the new interpretive questions that popped up between ten year reviews. To make that work though we'd need an efficient and effective administrative state and a legislature that wasn't wholly captured by sabotage monsters.
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Oct 6, 2021 20:39
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Hieronymous Alloy posted:What could be done, and probably should be done, is a recurring legislative approval process, say on a ten year timeframe, where legislatures could ratify or unratify the prior ten years of agency decisionmaking. Then you'd just need Chevron deference for the new interpretive questions that popped up between ten year reviews. There is the Congressional Review Act, right?
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Oct 7, 2021 01:16
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VitalSigns posted:Chevron deference does not allow the executive to "wilfully misconstrue the roles and authority of executive agencies" Congrats on waking up from the coma you were in for the last 4-5 years, because the Trump admin had agencies doing literally the exact opposite of what their stated mission was. I mean hell, Dejoy is still actively sabotaging the USPS because Biden hasn't forced him out (and probably never will).
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Oct 7, 2021 02:12
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Evil Fluffy posted:Congrats on waking up from the coma you were in for the last 4-5 years, because the Trump admin had agencies doing literally the exact opposite of what their stated mission was. As its been repeatedly pointed out, Biden is not able to force out Dejoy, partially because some of the Democrats on the board are fine with Dejoy; and partially because even if every Dem on it lined up behind the decision it can't be done until the next Republican appointment expires.
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Oct 7, 2021 02:18
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Raenir Salazar posted:As its been repeatedly pointed out, Biden is not able to force out Dejoy, partially because some of the Democrats on the board are fine with Dejoy; and partially because even if every Dem on it lined up behind the decision it can't be done until the next Republican appointment expires. Excuses have been made by people who are ok with the status quo. Biden can either fire some of the Trump appointees that his own would have the majority necessary to get rid of Dejoy even if the prior Dem appointees refuse to go along with the removal and worst case scenario: he fires all of them and nominates replacements to join his current appointees which is still better than doing literally nothing while Dejoy continues to sabotage the USPS to further his own personal goals and the GOP's larger goals. All of those board members serve at the please of the president. Biden is not required to wait for anyone's appointment to "expire" to get rid of them.
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Oct 7, 2021 03:08
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Evil Fluffy posted:Excuses have been made by people who are ok with the status quo. Biden can either fire some of the Trump appointees that his own would have the majority necessary to get rid of Dejoy even if the prior Dem appointees refuse to go along with the removal and worst case scenario: he fires all of them and nominates replacements to join his current appointees which is still better than doing literally nothing while Dejoy continues to sabotage the USPS to further his own personal goals and the GOP's larger goals. This isn't true, the law says he can only fire for cause; you think he could fire them at any time because to your mind the only reason he doesn't do it is because he doesn't "want" to, as Trump found out you really can't do anything and everything you please because the courts will intervene and you risk having your desired changes being invalided by the courts. The fact that in order to justify this entire irreality of yours is to go with "Well he could just fire all of them!" just shows just how incredulous this claim is and is just about projecting what you personally desire and has zero basis in any factual or reasonable reading of the relevant law or jurisprudence.
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Oct 7, 2021 03:28
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Evil Fluffy posted:Congrats on waking up from the coma you were in for the last 4-5 years, because the Trump admin had agencies doing literally the exact opposite of what their stated mission was. If the courts are letting that go, then the courts are also wilfully misconstruing the statute, and your problem isn't Chevron deference, it's a conservative court acting in bad faith. Getting rid of Chevron won't fix this problem, the Roberts court isn't going to go "ah now that Chevron deference is gone we'll force Trump/Biden to uphold the law in good faith" because under Chevron deference the court should already have been doing that and they chose not to. What will happen without Chevron is conservative courts overturning good faith enforcement of statutes by Democratic presidents, not conservative courts stopping bad faith enforcement of statutes by Republican presidents.
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Oct 7, 2021 03:29
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I'm really tired of "describing objectively observable reality" being conflated with "making excuses for the status quo".
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Oct 7, 2021 03:35
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Raenir Salazar posted:This isn't true, the law says he can only fire for cause; you think he could fire them at any time because to your mind the only reason he doesn't do it is because he doesn't "want" to, as Trump found out you really can't do anything and everything you please because the courts will intervene and you risk having your desired changes being invalided by the courts. The fact that in order to justify this entire irreality of yours is to go with "Well he could just fire all of them!" just shows just how incredulous this claim is and is just about projecting what you personally desire and has zero basis in any factual or reasonable reading of the relevant law or jurisprudence. By refusing to right DeJoy's policies that led to 50k mail-in votes being delivered too late to count, they've abandoned their oath to represent the public interest. Sure, centrists and Rs will whine about decorum and precedent, but it's both true and legal.
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Oct 7, 2021 03:38
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Raenir Salazar posted:This isn't true, the law says he can only fire for cause; you think he could fire them at any time because to your mind the only reason he doesn't do it is because he doesn't "want" to, as Trump found out you really can't do anything and everything you please because the courts will intervene and you risk having your desired changes being invalided by the courts. The fact that in order to justify this entire irreality of yours is to go with "Well he could just fire all of them!" just shows just how incredulous this claim is and is just about projecting what you personally desire and has zero basis in any factual or reasonable reading of the relevant law or jurisprudence. Now go read up on how broadly "for cause" can be used because yes something like hiring and continuing to support a postermaster general who has been repeatedly, intentionally, causing severe damage to the USPS is pretty solid grounds for termination with cause, even if you exclude the direct and deliberate election fuckery he engaged in for Trump. In the off-chance that Seila Law LLC v. Consumer Financial Protection Bureau applies to these people then all bets are off as well (though it'd be surprising if it does apply). "Biden can fire them all" is a position with no shortage of support from actual legal experts but by all means keep defending the status quo since we know why you're doing it. Evil Fluffy fucked around with this message at 03:44 on Oct 7, 2021 |
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Oct 7, 2021 03:42
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Evil Fluffy posted:Now go read up on how broadly "for cause" can be used because yes something like hiring and continuing to support a postermaster general who has been repeatedly, intentionally, causing severe damage to the USPS is pretty solid grounds for termination with cause. In the off-chance that Seila Law LLC v. Consumer Financial Protection Bureau applies to these people then all bets are off as well (though it'd be surprising if it does apply). Again, not true; for one because you're relying on an extreme interpretation of "for cause" that is nakedly political and not obviously rank incompetence, if it were then every democratic member and probably some Republican members of the board would have enthusiastically agreed to remove him; they don't because at least a couple of Dem board members have decided that they can work with him as DeJoy has allegedly compromised and has agreed to compromises that the Dem board members approve of; so you can't fire for cause just because you don't like the job they're doing. If there's "actual legal experts" that agree with you then by all means post them but I can with my own two eyes see your argument doesn't have merit and would be an unprecedented expansion of executive power, a thing I thought we wanted to curb? But so far all I see have been two attempts at appeal to authority and no actual argument that you think things should happen because you think they should happen because that's the result you want, not something that is a result of the proper process and a good faith reading.
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Oct 7, 2021 03:49
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Discendo Vox posted:I'm really tired of "describing objectively observable reality" being conflated with "making excuses for the status quo". I hear ya, I'm really tired of "making excuses for the status quo" being conflated with "describing objectively observable reality" Laws aren't objective or even real. Stickman posted:By refusing to right DeJoy's policies that led to 50k mail-in votes being delivered too late to count, they've abandoned their oath to represent the public interest. Sure, centrists and Rs will whine about decorum and precedent, but it's both true and legal. Deliberately sabotaging the electoral system and/or allowing it to happen is an even bigger thumb in the eye of  , funny that centrists don't care about that lolIt's so obvious that is only an excuse to let people get away with doing bad poo poo, when the people doing the bad poo poo are the ones violating decorum, not a peep.
VitalSigns fucked around with this message at 04:01 on Oct 7, 2021 |
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Oct 7, 2021 03:59
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Reminder that the 2006 law that financially destroyed the post office was passed by unanimous consent in a lame duck session at midnight right before Democrats were about to take over congress, so they could still blame Bush for it, then they never bothered to repeal it even though they claimed later that they didn't actually read what they were voting for and it was a mistake. And they still aren't trying to repeal it now. But yeah Biden isn't getting rid of the guy who agrees with the bipartisan goal of destroying the post office because gosh darn it Biden respects the sanctity of job security too much to save the post office from deliberate sabotage by a government employee he can fire at any time, keep telling yourself that lmao
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Oct 7, 2021 04:09
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Yay: A U.S. judge blocks enforcement of Texas' controversial new abortion law
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Oct 7, 2021 12:13
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Good.
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Oct 7, 2021 14:22
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Didn't it already go into effect? Like, a lot of damage has been done already?
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Oct 7, 2021 15:09
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Crows Turn Off posted:Didn't it already go into effect? Like, a lot of damage has been done already? Yes.
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Oct 7, 2021 15:12
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Crows Turn Off posted:Didn't it already go into effect? Like, a lot of damage has been done already? Yes. Texas abortion services won't return to normal unless the law is fully and permanently struck down; while on temporary injunction no one will be handed a $10K bounty but the intended chilling effect is still present.
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Oct 7, 2021 15:14
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I didn't mean to imply that all is right with the world now, but we can still be glad about a little bit of good news.
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Oct 7, 2021 15:50
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haveblue posted:Yes. Texas abortion services won't return to normal unless the law is fully and permanently struck down; while on temporary injunction no one will be handed a $10K bounty but the intended chilling effect is still present. Particularly because the law specifically says that if there is an injunction that is later struck down or stayed, conduct that happens while the injunction is in place is still subject to bounties after the fact
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Oct 7, 2021 15:51
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https://twitter.com/Ugarles/status/1445809556609650696?s=20
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Oct 7, 2021 15:53
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I mean, if a court isn’t acting on something you *can* petition for mandamus, which is what they did… in 2019. It’s unclear why they waited so long to file, but filing has prompted some motion forward in the case. But yeah it’s pretty hosed up that his habeas petition has been sitting for 13 years.
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Oct 7, 2021 16:08
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haveblue posted:Yes. Texas abortion services won't return to normal unless the law is fully and permanently struck down; while on temporary injunction no one will be handed a $10K bounty but the intended chilling effect is still present. Best of all outcomes for Repubs: they basically get their law AND don't have to pay any plebs to uphold it.
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Oct 7, 2021 16:57
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Kalman posted:I mean, if a court isn’t acting on something you *can* petition for mandamus, which is what they did… in 2019. It’s unclear why they waited so long to file, but filing has prompted some motion forward in the case. From what I understand, the attorneys that have represented the detainees had to put up with a lot of poo poo from the government just to see their clients
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Oct 7, 2021 17:42
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Zeeman posted:Particularly because the law specifically says that if there is an injunction that is later struck down or stayed, conduct that happens while the injunction is in place is still subject to bounties after the fact I read the opinion and there are statements that run contrary to this from abortion providers in Texas. Multiple providers testified that an injunction would be all they need to begin operating again. The court also briefly discussed (but did not rule on) the fact that the provision you're talking about is also likely unconstitutional. Here's hoping that at least some of the providers in Texas are able to get back up and running, and quickly. The bigger bummer to me is that my read of the situation is that Texas will appeal to the 5th (and God only knows what they will do), and one of two things happens: 1) 5th upholds the injunction and SCOTUS denies cert, for the appeal, or 2) 5th reverses, SCOTUS likely steps in and upholds the injunction Either way, the reversal of Roe is coming in the Spring so I'm feeling pretty doomer about the entire situation.
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Oct 7, 2021 17:57
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FlamingLiberal posted:He probably had several different attorneys A friend worked on some adjacent stuff wrt torture, they absolutely had to put up with a lot of poo poo, but that doesn’t excuse the attorneys waiting as long as they did to mandamus the case.
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Oct 7, 2021 18:14
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Kalman posted:A friend worked on some adjacent stuff wrt torture, they absolutely had to put up with a lot of poo poo, but that doesn’t excuse the attorneys waiting as long as they did to mandamus the case. If a majority on the court wanted to do something about it something would have been done. They don't care about Guantanamo, or at least they didn't until recently.
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Oct 7, 2021 19:29
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Overturn Madbury Vs Madison
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Oct 7, 2021 19:49
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Covok posted:Overturn Madbury Vs Madison Calm down Clarence.
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Oct 7, 2021 20:08
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