Chevron Doctrine Overruled

[CO. Hoosier]

I don't care so much about Chevron, I am just pointing out Reagan and Gorsuch's mother WANTED Chevron when it suited Republican aims. It no longer does, so the court suddenly finds it bad law.

Your whole point is messed up. You again have taken a discrete point and exploded it into a broad generalization. The Chevron result was good and reasonable. That is far different from saying conservatives supported want the deferral has become. I applaud the court for stopping the run-a-way train. What I can’t figure out is why liberals want the administrative agencies to have such power and authority. That doesn’t seem to fit any political agenda. If you don’t want to answer, fine, maybe somebody else will.

 

[Aloha Hoosier]

Which one of you is this?

View embedded media

I couldn’t understand what she was blubbering about, just heard blubbering. I assumed it was a selfie video of dbm during his three-day crying jag after Trump lost in 2020. Could have been Bailey.

 

[BradStevens]

I understand that. I’m deliberately simplifying it - for obvious reasons.

I think when the cases are that simple you actually get pretty broad agreement on the Court. Many many cases are 9-0, they just don’t get much press.

 

[crazed_hoosier2]

I think when the cases are that simple you actually get pretty broad agreement on the Court. Many many cases are 9-0, they just don’t get much press.

I wouldn’t say that at all. We’ve seen several big cases in recent times where precedent was overturned because of conflicts with either Constitutional or Statutory law - including this one (and Dobbs, Students for Fair Admission, etc).

But people just have to remember that the text reigns supreme - even if different judges interpret and/or apply it differently. Not everything is cut and dried.

 

[Marvin the Martian]

Your whole point is messed up. You again have taken a discrete point and exploded it into a broad generalization. The Chevron result was good and reasonable. That is far different from saying conservatives supported want the deferral has become. I applaud the court for stopping the run-a-way train. What I can’t figure out is why liberals want the administrative agencies to have such power and authority. That doesn’t seem to fit any political agenda. If you don’t want to answer, fine, maybe somebody else will.

How would I know what liberals want? I subscribe to no liberal newsletters, I do not watch or listen to stupid opinion makers blather (nor stupid conservative opinion makers blather) on radio or tv. I don't follow liberal blogs or podcasts. Any political texts I get, and I have tons of them from Biden AND Trump begging for money, goes into a spam folder unopened and usually automatically. I don't want others telling me what to think.

I think the biggest problem we face are people saying, "I don't know what to think about this, I better find out from Maddow/Hannity/anonymous Twitter."

My best take is environmental groups were made they lost to Reagan and the EPA was allowed to circumvent congressional will. So they worked on a new strategy and did quite well and are told "just kidding."

You said Chevron was good and reasonable, so why isn't this ruling an affirmation of Chevron exactly as written?

 

[BradStevens]

I wouldn’t say that at all. We’ve seen several big cases in recent times where precedent was overturned because of conflicts with either Constitutional or Statutory law - including this one (and Dobbs, Students for Fair Admission, etc).

But people just have to remember that the text reigns supreme - even if different judges interpret and/or apply it differently. Not everything is cut and dried.

The text does not always reign supreme, although it normally does. Reread the 11th Amendment. There is an enormously important conflict between the text and how it is applied and the result is hugely important for constitutional enforcement against the states.

In fact, even saying "the text reigns supreme" doesn't answer much--originalists and textualists fight all the time over the words and interpretative methods.

As for Dobbs, it's debatable for a reason. Stare decisis is a very important consideration. Sometimes decisions are "wrong" based on your preferred interpretative method, but you don't reverse because a strong consideration in the law--a "conservative" one if there ever was one-- is reliability and stability through the status quo. If you don't agree with this, you're going to have law that changes with the political winds, which is what most are worried about with this current Court's reinterpretation of so much past, settled law.

I guess it changed in the 70s and 80s when the Court swung "left" and admittedly decided cases that seemed outside the bounds of past methods. The Right developed an underlying, systemic legal philosophy that turned into everything needing to reduce to and be justified using that one philosophy. I find that at odds with true conservatism, that recognizes the limits of human reason and while stressing the importance of traditions and institutions that developed organically. Undoing decades of case law and institutional practice that have organically developed to deal with certain issues--like our abortion jurisprudence pre-Dobbs and deference around the administrative decisions--in favor of a theoretical approach to government/political philosophy is arguably not "conservative" in that way. Although I admit both areas are "only" half a century old and were debated and challenged for most of that time.

 

[crazed_hoosier2]

The text does not always reign supreme, although it normally does. Reread the 11th Amendment. There is an enormously important conflict between the text and how it is applied and the result is hugely important for constitutional enforcement against the states.

In fact, even saying "the text reigns supreme" doesn't answer much--originalists and textualists fight all the time over the words and interpretative methods.

As for Dobbs, it's debatable for a reason. Stare decisis is a very important consideration. Sometimes decisions are "wrong" based on your preferred interpretative method, but you don't reverse because a strong consideration in the law--a "conservative" one if there ever was one-- is reliability and stability through the status quo. If you don't agree with this, you're going to have law that changes with the political winds, which is what most are worried about with this current Court's reinterpretation of so much past, settled law.

I guess it changed in the 70s and 80s when the Court swung "left" and admittedly decided cases that seemed outside the bounds of past methods. The Right developed an underlying, systemic legal philosophy that turned into everything needing to reduce to and be justified using that one philosophy. I find that at odds with true conservatism, that recognizes the limits of human reason and while stressing the importance of traditions and institutions that developed organically. Undoing decades of case law and institutional practice that have organically developed to deal with certain issues--like our abortion jurisprudence pre-Dobbs and deference around the administrative decisions--in favor of a theoretical approach to government/political philosophy is arguably not "conservative" in that way. Although I admit both areas are "only" half a century old and were debated and challenged for most of that time.

I’m not arguing that this approach is conservative - or that that is something courts should even pursue (they shouldn’t - it is not their job to make laws, but to properly interpret and apply them).

But precedent is only useful, and should only be allowed to stand, when it comports with ratified text and/or statutory language, properly understood.

When there is a conflict, as there was here and in the other ones I named, then it is the duty of the courts to bring case law in harmony with the text.

And, yes, I fully agree (and said above) that reasonable and informed people can and often do differ in their interpretation and application of legal text. But that doesn’t mean that this shouldn’t be their general road map.

 

[crazed_hoosier2]

The text does not always reign supreme, although it normally does. Reread the 11th Amendment. There is an enormously important conflict between the text and how it is applied and the result is hugely important for constitutional enforcement against the states.

In fact, even saying "the text reigns supreme" doesn't answer much--originalists and textualists fight all the time over the words and interpretative methods.

As for Dobbs, it's debatable for a reason. Stare decisis is a very important consideration. Sometimes decisions are "wrong" based on your preferred interpretative method, but you don't reverse because a strong consideration in the law--a "conservative" one if there ever was one-- is reliability and stability through the status quo. If you don't agree with this, you're going to have law that changes with the political winds, which is what most are worried about with this current Court's reinterpretation of so much past, settled law.

I guess it changed in the 70s and 80s when the Court swung "left" and admittedly decided cases that seemed outside the bounds of past methods. The Right developed an underlying, systemic legal philosophy that turned into everything needing to reduce to and be justified using that one philosophy. I find that at odds with true conservatism, that recognizes the limits of human reason and while stressing the importance of traditions and institutions that developed organically. Undoing decades of case law and institutional practice that have organically developed to deal with certain issues--like our abortion jurisprudence pre-Dobbs and deference around the administrative decisions--in favor of a theoretical approach to government/political philosophy is arguably not "conservative" in that way. Although I admit both areas are "only" half a century old and were debated and challenged for most of that time.

I should add that I fully realize there are people who believe that the text shouldn’t always reign supreme - thus my citation of Justice Marshall’s famous summation of his judicial philosophy.

I just don’t think they’re the ones in charge anymore.

 

[BradStevens]

I should add that I fully realize there are people who believe that the text shouldn’t always reign supreme - thus my citation of Justice Marshall’s famous summation of his judicial philosophy.

I just don’t think they’re the ones in charge anymore.

So are you in favor of the SCt overturning Hans v. Louisiana and allow citizens of a state to sue their own state in federal court?

 

[crazed_hoosier2]

So are you in favor of the SCt overturning Hans v. Louisiana and allow citizens of a state to sue their own state in federal court?

I’d have to read more about it. So I don’t know.

I know the 11A was drafted and ratified only to address suits against a state by citizens of other states in federal court. But that doesn’t mean there aren’t other applicable statutes that apply here.

 

[BradStevens]

I’d have to read more about it. So I don’t know.

I know the 11A was drafted and ratified only to address suits against a state by citizens of other states in federal court. But that doesn’t mean there aren’t other applicable statutes that apply here.

It's a simple matter of constitutional interpretation. No statute needed. And if you're relying on the text, the drafting and ratification understanding or purpose are irrelevant.

The correct textual reading is to overrule Hans. And I think it theoretically should be (for prudential and fairness reasons). But we have 100+ years of history under the Hans interpretation and that counts for something.

 

[crazed_hoosier2]

It's a simple matter of constitutional interpretation. No statute needed. And if you're relying on the text, the drafting and ratification understanding or purpose are irrelevant.

The correct textual reading is to overrule Hans. And I think it theoretically should be (for prudential and fairness reasons). But we have 100+ years of history under the Hans interpretation and that counts for something.

Why should it count?

If it’s wrong, it’s wrong….however long ago it was wrongly decided. So I think we just have a fundamental disagreement on that.

I do not think that courts should be using their power to amend the Constitution, even if it’s a de facto amendment.

We have an amendment process.

 

[MyTeamIsOnTheFloor]

Chevron never made sense . It’s contrary to how Colorado treats bureaucracies and all other states that I am aware of. Good to see that review of agency decisions is again in the hands of the courts.

The SEC case yesterday and this one go a long way towards holding back the swamp.

This case would have made perfect sense to guys like Madison, Adams, Jefferson - the folks who looked at things from a "separation of powers" angle.

The Constitution says - on purpose - that the judiciary says what the law means, at least when Congress has left it ambiguous, and says whether a law violates the Constitution. Chevron was a limitation on that judicial power, issued when unprincipled legal folks demanded a result-oriented judiciary instead of a principle/power-oriented judiciary. People still look at the judiciary as an institution that is supposed to "give them something" instead of one that restrains the Legislative and Executive to their proper roles.

 

[Marvin the Martian]

How about the case making homelessness illegal. Since it doesn't specifically say homeless, it is legal to make it illegal to sleep in tents or outdoors.

I cannot fathom what they think homeless can do. There is zero practicality. We might as well outlaw diseases and conditions. Let me ask this, does anyone here think the Founders would have made sleeping outdoors or in tents illegal? What suddenly happened to originalism?

 

[BradStevens]

Why should it count?

If it’s wrong, it’s wrong….however long ago it was wrongly decided. So I think we just have a fundamental disagreement on that.

I do not think that courts should be using their power to amend the Constitution, even if it’s a de facto amendment.

We have an amendment process.

It should count because people build up reliance interests on the rule. It should count because as a society grows it creates other rules and institutions and evolves based on that rule in ways you and I sometimes cannot parse out. So the safest way, sometimes, is to just continue on with the status quo. Sometimes that is more important than whether the rule meets your need for strict consistency.

It also recognizes that in legal interpretation, there usually isnt one right or wrong answer—there are a range of reasonable answers. Again, law is not math.

I think the principle of relying on stare decisis, in the face of a "wrong" decision, is based on the conservative notion of social peace that Yuval Levin talks about in this interview (here he's referring to progressive's current interest in upending the constitutional system):

How the Constitution Can Bring Us Together (with Yuval Levin) - Econlib

Can a document unify a nation? Yuval Levin of the American Enterprise Institute and author of American Covenant argues that the Constitution unified the United States at the founding of the country and that understanding the Constitution can help bring the country together today. Listen as Levin...

www.econtalk.org

Yuval Levin: I do, too. I think that is the one place where it is reasonable in this moment to be very alarmed about the condition of the system.

And, I actually think that that is also a reason to go back to the beginning and to remind people of why these things are here. You mentioned Chesterton's Fence before. I think it's a very useful way to think about a lot of what is in our system, which is: You have to understand why it's there before you decide it's time to get rid of it.

Now, you might still decide that, but you have to be able to explain to yourself why we have it.

And, I think that that's now the case with a lot of our Constitutional system: that we have to remind ourselves or to reacquaint ourselves or maybe to acquaint ourselves for the first time with the underlying logic here, which comes from a place of worry about democratic political culture.

The Constitution was written by people who were not sure this could work. And, we should always have somewhere in the back of our minds a concern and unsureness about whether this can work.

And that should lead us to restraint. It should lead us in really crucial moments to prefer social peace over winning the argument. To recognize that the alternative to our winning is not necessarily--that the alternative to the system we have is not our winning: the alternative to the system we have is a collapse of social peace in American life. And we take it for granted because we've always been able to count on it, or almost always. But it is not to be taken for granted. We should prioritize cohesion. We should prioritize social peace much more than we do, and recognize that pushing these boundaries runs real risks.

And, one way to see that is to help ourselves understand why the boundaries are there, why they look the way they do. So, this book is in part, certainly rooted in that concern. Not just in a sense of confidence about the American system, but in some worry about whether it can persist if we forget why it's there and why it is the way it is.

 

[CO. Hoosier]

It should count because people build up reliance interests on the rule. It should count because as a society grows it creates other rules and institutions and evolves based on that rule in ways you and I sometimes cannot parse out. So the safest way, sometimes, is to just continue on with the status quo. Sometimes that is more important than whether the rule meets your need for strict consistency.

It also recognizes that in legal interpretation, there usually isnt one right or wrong answer—there are a range of reasonable answers. Again, law is not math.

I think the principle of relying on stare decisis, in the face of a "wrong" decision, is based on the conservative notion of social peace that Yuval Levin talks about in this interview (here he's referring to progressive's current interest in upending the constitutional system):

How the Constitution Can Bring Us Together (with Yuval Levin) - Econlib

Can a document unify a nation? Yuval Levin of the American Enterprise Institute and author of American Covenant argues that the Constitution unified the United States at the founding of the country and that understanding the Constitution can help bring the country together today. Listen as Levin...

www.econtalk.org

Yuval Levin: I do, too. I think that is the one place where it is reasonable in this moment to be very alarmed about the condition of the system.

And, I actually think that that is also a reason to go back to the beginning and to remind people of why these things are here. You mentioned Chesterton's Fence before. I think it's a very useful way to think about a lot of what is in our system, which is: You have to understand why it's there before you decide it's time to get rid of it.

Now, you might still decide that, but you have to be able to explain to yourself why we have it.

And, I think that that's now the case with a lot of our Constitutional system: that we have to remind ourselves or to reacquaint ourselves or maybe to acquaint ourselves for the first time with the underlying logic here, which comes from a place of worry about democratic political culture.

The Constitution was written by people who were not sure this could work. And, we should always have somewhere in the back of our minds a concern and unsureness about whether this can work.

And that should lead us to restraint. It should lead us in really crucial moments to prefer social peace over winning the argument. To recognize that the alternative to our winning is not necessarily--that the alternative to the system we have is not our winning: the alternative to the system we have is a collapse of social peace in American life. And we take it for granted because we've always been able to count on it, or almost always. But it is not to be taken for granted. We should prioritize cohesion. We should prioritize social peace much more than we do, and recognize that pushing these boundaries runs real risks.

And, one way to see that is to help ourselves understand why the boundaries are there, why they look the way they do. So, this book is in part, certainly rooted in that concern. Not just in a sense of confidence about the American system, but in some worry about whether it can persist if we forget why it's there and why it is the way it is.

Which is why I am against the designated hitter.

What do you think of the value of precedent in the legislative context? Shouldn’t the legislature be able to repeal statutes? What about the immunity laws (like the gun industry) that overrule or limit common law torts?

I understand the value of precedent. But the value doesn’t apply the same in all cases. The importance of precedent in Roe v. Wade isn’t nearly the same as Chevron.

 

[BradStevens]

Which is why I am against the designated hitter.

What do you think of the value of precedent in the legislative context? Shouldn’t the legislature be able to repeal statutes? What about the immunity laws (like the gun industry) that overrule or limit common law torts?

I understand the value of precedent. But the value doesn’t apply the same in all cases. The importance of precedent in Roe v. Wade isn’t nearly the same as Chevron.

I agree the value of precedent is not the same in all cases.

Re legislative application, there are two things: first, precedent is the wrong word, but tradition is important. I am a gradualist now (I was not in my youth) and I value social peace much more now, after the last decade or so.

Second, the branch that should be upsetting the applecart is the legislative one, not the unelected judicial one. Mainly for the same reasons: social peace and legitimacy. Change is best when done with broad societal buy in, not just from top, elites--the bigger the change the more I think this is true. This requires a slower advancement to the goal (most of my goals are progressive, by the way, I'm just conservative about the means to get there), but a sustainable one and one that keeps the peace better.

 

[CO. Hoosier]

I agree the value of precedent is not the same in all cases.

Re legislative application, there are two things: first, precedent is the wrong word, but tradition is important. I am a gradualist now (I was not in my youth) and I value social peace much more now, after the last decade or so.

Second, the branch that should be upsetting the applecart is the legislative one, not the unelected judicial one. Mainly for the same reasons: social peace and legitimacy. Change is best when done with broad societal buy in, not just from top, elites--the bigger the change the more I think this is true. This requires a slower advancement to the goal (most of my goals are progressive, by the way, I'm just conservative about the means to get there), but a sustainable one and one that keeps the peace better.

Agree with a lot of this.

This is why I think Roe v Wade was wrongfully decided and then it was wrongfully overturned. If abortion was kept as a legislative issue, turmoil would have been much less.

Legislative bodies should be responsive to public opinion, courts, at least at the appellate level, should not. Of course courts consider the policy implications of some decisions, but that should guide them in interpreting law and precedent. Courts shouldn’t decide cases based upon agreeing or disagreeing with the policy makers.

 

[Marvin the Martian]

Agree with a lot of this.

This is why I think Roe v Wade was wrongfully decided and then it was wrongfully overturned. If abortion was kept as a legislative issue, turmoil would have been much less.

Legislative bodies should be responsive to public opinion, courts, at least at the appellate level, should not. Of course courts consider the policy implications of some decisions, but that should guide them in interpreting law and precedent. Courts shouldn’t decide cases based upon agreeing or disagreeing with the policy makers.

You asked why liberals would defend Chevron earlier. I still do not know, but here is my take.

I was reading a story on how great this decision is because it will force Congress to do it's job. Unless this decision came with the ability to lock congress up for contempt, how?

So congress passes/has long passed unclear decisions. Now the Administrative state makes an interpretation. Then that decision is taken to court. Of course it will be judge shopped as much as possible. That judge will make a decision. As we see from the Trump documents trial, that isn't fast. Then there will be appeals. Another case will pop up elsewhere, another decision, more appeals. All this time, perhaps years, no one "knows" what the law is. Uncertainty is not a positive. With as many decisions as the administrative state has to make in a year, are the courts prepared to handle all this extra work? Add in the other case, where SEC and others cannot necessarily fine people without a jury trial, what is going to happen to the court system. It isn't speedy now. Is Congress going to throw money at it to expand it?

 

[CO. Hoosier]

You asked why liberals would defend Chevron earlier. I still do not know, but here is my take.

I was reading a story on how great this decision is because it will force Congress to do it's job. Unless this decision came with the ability to lock congress up for contempt, how?

So congress passes/has long passed unclear decisions. Now the Administrative state makes an interpretation. Then that decision is taken to court. Of course it will be judge shopped as much as possible. That judge will make a decision. As we see from the Trump documents trial, that isn't fast. Then there will be appeals. Another case will pop up elsewhere, another decision, more appeals. All this time, perhaps years, no one "knows" what the law is. Uncertainty is not a positive. With as many decisions as the administrative state has to make in a year, are the courts prepared to handle all this extra work? Add in the other case, where SEC and others cannot necessarily fine people without a jury trial, what is going to happen to the court system. It isn't speedy now. Is Congress going to throw money at it to expand it?

That’s not an unreasonable point. But I think it is overstated. Traditional judicial review is how administrative law works in general. The deferral Chevron created was relatively narrow. I think the greater impact for some agencies, like the SEC, Labor, EEOC, will be the Jarkesy decision cutting back agency authority to use agency judges to enforce their rules.

 

[Cortez88]

There are going to be a lot more courts cases. This will feed down through state legislatures. Executive branch agencies will be scared to take any actions that could be challenged in court. Congressional lobbyists will have increased expense accounts.

 

[IUCrazy2]

What I can’t figure out is why liberals want the administrative agencies to have such power and authority. That doesn’t seem to fit any political agenda. If you don’t want to answer, fine, maybe somebody else will.

They won't admit it, but many of the "progressive" changes the left has pushed on the country has come from the executive branch. Things they are incapable of getting done on stuff like climate change through the legislative process can be done through executive branch "regulations". It is always about power and how that power is wielded. Always.

 

[IUCrazy2]

The text does not always reign supreme, although it normally does. Reread the 11th Amendment. There is an enormously important conflict between the text and how it is applied and the result is hugely important for constitutional enforcement against the states.

In fact, even saying "the text reigns supreme" doesn't answer much--originalists and textualists fight all the time over the words and interpretative methods.

As for Dobbs, it's debatable for a reason. Stare decisis is a very important consideration. Sometimes decisions are "wrong" based on your preferred interpretative method, but you don't reverse because a strong consideration in the law--a "conservative" one if there ever was one-- is reliability and stability through the status quo. If you don't agree with this, you're going to have law that changes with the political winds, which is what most are worried about with this current Court's reinterpretation of so much past, settled law.

I guess it changed in the 70s and 80s when the Court swung "left" and admittedly decided cases that seemed outside the bounds of past methods. The Right developed an underlying, systemic legal philosophy that turned into everything needing to reduce to and be justified using that one philosophy. I find that at odds with true conservatism, that recognizes the limits of human reason and while stressing the importance of traditions and institutions that developed organically. Undoing decades of case law and institutional practice that have organically developed to deal with certain issues--like our abortion jurisprudence pre-Dobbs and deference around the administrative decisions--in favor of a theoretical approach to government/political philosophy is arguably not "conservative" in that way. Although I admit both areas are "only" half a century old and were debated and challenged for most of that time.

I full throatedly disagree with the last paragraph. For starters, when it comes to these court cases, there was nothing organic about the switch. It was decided in the same way they were overturned. Outside of that, it would mean that a conservative is merely the brakes on the whims of progressive liberals. All the Progressives have to do is push far and fast enough and the conservatives should eventually want to stop and conserve whatever that point in time is. It is a losers gambit that basically acquiesces to the idea that everything the Progressives push for is all well and good....eventually.

I don't think that at all. There is a whole bunch about our current society that is not worth conserving right now. It only becomes interesting to "conserve" in the face of an even greater push. Sometimes going back is the way to conserve. You have to have a core set of values that you believe should be how things are run, not just the idea of, "Well what those people are doing, just slower."

 

[BradStevens]

There are going to be a lot more courts cases. This will feed down through state legislatures. Executive branch agencies will be scared to take any actions that could be challenged in court. Congressional lobbyists will have increased expense accounts.

More work for lawyers!

 

[BradStevens]

I full throatedly disagree with the last paragraph. For starters, when it comes to these court cases, there was nothing organic about the switch. It was decided in the same way they were overturned. Outside of that, it would mean that a conservative is merely the brakes on the whims of progressive liberals. All the Progressives have to do is push far and fast enough and the conservatives should eventually want to stop and conserve whatever that point in time is. It is a losers gambit that basically acquiesces to the idea that everything the Progressives push for is all well and good....eventually.

I don't think that at all. There is a whole bunch about our current society that is not worth conserving right now. It only becomes interesting to "conserve" in the face of an even greater push. Sometimes going back is the way to conserve. You have to have a core set of values that you believe should be how things are run, not just the idea of, "Well what those people are doing, just slower."

I think that’s called “reactionary”. Maybe “regressive.” I’m not using those terms pejoratively, just trying to capture your thoughts there with a word.

The status quo changes over time. That’s just a fact. If something has been around for a long time, society adjusts to it. If you want to change some tradition because it doesn’t match your philosophical principle or theory, you aren’t a conservative in the older sense—-you want change too.

But you could just be debating how long something needs to be around to count as status quo or tradition. There is no bright line, I admit, and it is arguable. Lots of room to disagree and still be under a broad banner of wanting to “conserve” or recognizing the principles I outlined.

 

[Marvin the Martian]

That’s not an unreasonable point. But I think it is overstated. Traditional judicial review is how administrative law works in general. The deferral Chevron created was relatively narrow. I think the greater impact for some agencies, like the SEC, Labor, EEOC, will be the Jarkesy decision cutting back agency authority to use agency judges to enforce their rules.

You don't think EPA?

The decision isn't a big deal to me. It would be less if congress wasn't totally dysfunctional. Depending on congress isn't far off from planning to pay off one's debts by winning Powerball, twice.

I still think the homeless case is the annoying one. Saying homeless must have a home is akin to saying pi must be 3.0.

 

[BradStevens]

I full throatedly disagree with the last paragraph. For starters, when it comes to these court cases, there was nothing organic about the switch. It was decided in the same way they were overturned. Outside of that, it would mean that a conservative is merely the brakes on the whims of progressive liberals. All the Progressives have to do is push far and fast enough and the conservatives should eventually want to stop and conserve whatever that point in time is. It is a losers gambit that basically acquiesces to the idea that everything the Progressives push for is all well and good....eventually.

I don't think that at all. There is a whole bunch about our current society that is not worth conserving right now. It only becomes interesting to "conserve" in the face of an even greater push. Sometimes going back is the way to conserve. You have to have a core set of values that you believe should be how things are run, not just the idea of, "Well what those people are doing, just slower."

By the way, Chevron was decided by a conservative court and was championed by the right and criticized by the left at the time:

The End of Chevron Deference

Implications for expertise in regulatory policy making

rogerpielkejr.substack.com

Once celebrated by the right and sharply criticized by the left, Chevron is now under assault from the right and (for the most part) accepted on the left. More particularly: The decision was originally embraced by the right as an effort to cabin the illegitimate exercise of policymaking authority of unelected judges, who were often requiring greater regulatory activity, and to insist instead on the primacy of officials within the Executive Branch, who have the advantage of democratic accountability. On this view, Chevron shifted authority from unaccountable judges, who had policy goals of their own, to policymaking officials.

The principal objections came from the left, which saw Chevron as an effort to weaken judicial review and as a capitulation to the (insufficiently zealous) administrative state, which was often captured by powerful private interests, and which often failed to regulate as Congress directed. Relatively aggressive judicial review, certainly on questions of law, was necessary to counteract the risk of “capture” and violations of congressional directions.

 

[crazed_hoosier2]

I think that’s called “reactionary”. Maybe “regressive.” I’m not using those terms pejoratively, just trying to capture your thoughts there with a word.

The status quo changes over time. That’s just a fact. If something has been around for a long time, society adjusts to it. If you want to change some tradition because it doesn’t match your philosophical principle or theory, you aren’t a conservative in the older sense—-you want change too.

But you could just be debating how long something needs to be around to count as status quo or tradition. There is no bright line, I admit, and it is arguable. Lots of room to disagree and still be under a broad banner of wanting to “conserve” or recognizing the principles I outlined.

You’re right. But the mechanisms in place to accommodate societal change are statutory legislation (at both the federal and state levels) and the amendment process.

Laws, unless they’re specifically drafted to have one, do not have a sunset date. And it is simply not the role of courts to act as a de facto legislature to use (abuse) their authority to affect changes to the law In the stead of the processes we have in place to affect them.

You’ve mentioned timeframes. Would we tell the heirs of families who had works of art looted by the Nazis that they have no rightful claim to them…because they were stolen from their ancestors almost 100 years ago?

I wouldn’t think so. The passage of time, the fact these items have changed hands at least once since then, etc. These things are not valid arguments against returning the stolen goods to their rightful owners.

Anyway, you’re absolutely right that society changes. Our framers knew this full well. If they didn’t, they wouldn’t have created a federal legislature, the space for states to chart their own courses within limits, and two processes to amend the Constitution.

 

[Marvin the Martian]

You’ve mentioned timeframes. Would we tell the heirs of families who had works of art looted by the Nazis that they have no rightful claim to them…because they were stolen from their ancestors almost 100 years ago?

Does the same hold true for Blacks whose ancestors were stolen away 170 years ago? Or who had their rights stolen away 80 years ago?

 

[crazed_hoosier2]

You don't think EPA?

The decision isn't a big deal to me. It would be less if congress wasn't totally dysfunctional. Depending on congress isn't far off from planning to pay off one's debts by winning Powerball, twice.

I still think the homeless case is the annoying one. Saying homeless must have a home is akin to saying pi must be 3.0.

The court didn’t say the homeless must have a home. They said that states (or, in this case, a city) can affect laws and ordinances such as the one Grants Pass did.

This is not a trivial distinction. And, again, it gets back to the proper role of the federal courts.

This seems to be a common disconnect between supporters and critics of the Roberts court.

 

[IUCrazy2]

I think that’s called “reactionary”. Maybe “regressive.” I’m not using those terms pejoratively, just trying to capture your thoughts there with a word.

The status quo changes over time. That’s just a fact. If something has been around for a long time, society adjusts to it. If you want to change some tradition because it doesn’t match your philosophical principle or theory, you aren’t a conservative in the older sense—-you want change too.

But you could just be debating how long something needs to be around to count as status quo or tradition. There is no bright line, I admit, and it is arguable. Lots of room to disagree and still be under a broad banner of wanting to “conserve” or recognizing the principles I outlined.

There are some things that could be around for 1,000 years that I wouldn't want to conserve. I think the issue is trying to make the label fit the political POV. "Conservative" has become a stand in for those who ascribe to a political philosophy of least obtrusive government necessary, socially with "traditional" values that are mostly informed now or at some point in time by Judeo-Christian religious values (whether practicing or not, the influence is there), and economically capitalists with varying degrees of bulwarks against corruption desired, and also thoughts on freedoms w.r.t government intervention. American conservatives are classical liberals.

The issue I took is that conservative means conserving the current thing. Yes, at times people who are "conservatives" will be reactionary. I don't find that to be a dirty word. With the opponent constantly pushing for the next thing, it should be necessary to be reactionary if you have a core belief. I do not accept regressive as that would have connotations of returning to a worse state, which again puts progressives in the driver's seat. I don't view that movement as a positive right now. I think some of the things they push has us worse off and the best thing to do would be to dial things back.

 

[Marvin the Martian]

The court didn’t say the homeless must have a home. They said that states (or, in this case, a city) can affect laws and ordinances such as the one Grants Pass did.

This is not a trivial distinction. And, again, it gets back to the proper role of the federal courts.

This seems to be a common disconnect between supporters and critics of the Roberts court.

The ordinance is they cannot sleep outdoors. You have a mental illness, no real way to make money, what options do you have besides sleep outside? You might as well pass an ordinance that walking is illegal, everyone has to flap their wings and fly

 

[BradStevens]

You’re right. But the mechanisms in place to accommodate societal change are statutory legislation (at both the federal and state levels) and the amendment process.

Laws, unless they’re specifically drafted to have one, do not have a sunset date. And it is simply not the role of courts to act as a de facto legislature to use (abuse) their authority to affect changes to the law In the stead of the processes we have in place to affect them.

You’ve mentioned timeframes. Would we tell the heirs of families who had works of art looted by the Nazis that they have no rightful claim to them…because they were stolen from their ancestors almost 100 years ago?

I wouldn’t think so. The passage of time, the fact these items have changed hands at least once since then, etc. These things are not valid arguments against returning the stolen goods to their rightful owners.

Anyway, you’re absolutely right that society changes. Our framers knew this full well. If they didn’t, they wouldn’t have created a federal legislature, the space for states to chart their own courses within limits, and two processes to amend the Constitution.

I’m in broad agreement with you. We probably disagree about the SCt and the law—I think there are many cases that are open to reasonable interpretation from both sides and there is no one “right “ answer.

Re the Nazi example, you’re just arguing over the time period, I think. After enough generations and enough reliance on society from innocent third parties, most would say what’s past is past. Thank God. We can’t go back and litigate every past wrong.

 

[crazed_hoosier2]

Does the same hold true for Blacks whose ancestors were stolen away 170 years ago? Or who had their rights stolen away 80 years ago?

It would depend on the context. But, depending on the context, yes.

What I mean by that is that most reparations proposals don’t properly tie the two ends (the victims and the perps) together. And there is, of course, the fact that what was done to them was (sadly) legal at the time, under a continuing regime.

But, to be sure, victims of crimes done 100 years ago are absolutely still due justice today.

 

[IUCrazy2]

By the way, Chevron was decided by a conservative court and was championed by the right and criticized by the left at the time:

The End of Chevron Deference

Implications for expertise in regulatory policy making

rogerpielkejr.substack.com

Once celebrated by the right and sharply criticized by the left, Chevron is now under assault from the right and (for the most part) accepted on the left. More particularly: The decision was originally embraced by the right as an effort to cabin the illegitimate exercise of policymaking authority of unelected judges, who were often requiring greater regulatory activity, and to insist instead on the primacy of officials within the Executive Branch, who have the advantage of democratic accountability. On this view, Chevron shifted authority from unaccountable judges, who had policy goals of their own, to policymaking officials.

The principal objections came from the left, which saw Chevron as an effort to weaken judicial review and as a capitulation to the (insufficiently zealous) administrative state, which was often captured by powerful private interests, and which often failed to regulate as Congress directed. Relatively aggressive judicial review, certainly on questions of law, was necessary to counteract the risk of “capture” and violations of congressional directions.

I know. They messed up. As I said above, it was about power. Really what this all leads back to is two parties where the gulf has become so great that legislating in the actual legislative branch has become difficult. So each has sought the ability to get things done outside the constitutionally prescribed processes because that is viewed as an easier way to do things. Which, IMO, just further incentivizes the legislative dysfunction.

 

[crazed_hoosier2]

The ordinance is they cannot sleep outdoors. You have a mental illness, no real way to make money, what options do you have besides sleep outside? You might as well pass an ordinance that walking is illegal, everyone has to flap their wings and fly

So your problem should be with the ordinance and the people who made it into law…not the people who said it isn’t unconstitutional.

That’s my point. The court is not purporting to say what is and is not the right way to deal with homelessness. The court is interpreting and applying (I think, I haven’t read it) the 8th Amendment.

The proper way to get this changed is through elections and legislating.

 

[BradStevens]

It would depend on the context. But, depending on the context, yes.

What I mean by that is that most reparations proposals don’t properly tie the two ends (the victims and the perps) together. And there is, of course, the fact that what was done to them was (sadly) legal at the time, under a continuing regime.

But, to be sure, victims of crimes done 100 years ago are absolutely still due justice today.

Those victims are dead. What justice are you going to give them?

 

[crazed_hoosier2]

I’m in broad agreement with you. We probably disagree about the SCt and the law—I think there are many cases that are open to reasonable interpretation from both sides and there is no one “right “ answer.

Re the Nazi example, you’re just arguing over the time period, I think. After enough generations and enough reliance on society from innocent third parties, most would say what’s past is past. Thank God. We can’t go back and litigate every past wrong.

Where we can, we should.

And cases of looted art are still being dealt with…as they should.

 

[crazed_hoosier2]

Those victims are dead. What justice are you going to give them?

So are the victims of looted art, cited above.

But many of these families have had their ancestors’ property recovered. As they should be able to.

Where they haven’t, they’re usually running into interference from governments like Russia.

 

[BradStevens]

I know. They messed up. As I said above, it was about power. Really what this all leads back to is two parties where the gulf has become so great that legislating in the actual legislative branch has become difficult. So each has sought the ability to get things done outside the constitutionally prescribed processes because that is viewed as an easier way to do things. Which, IMO, just further incentivizes the legislative dysfunction.

Or it was a reasonable reaction to the evolution of our legislature, its member make up, and the politics of today.

To be glib, do we really want detailed legislation coming from the likes of MTG and Cori Bush? Congress houses some of the dumbest, corrupt people in the country. Will this decision change that?