Supreme Court poised to end 'constitutional revolution' that's marred US governance for 40 years

[useapen]

When Justice John Paul Stephens issued his 1984 opinion in Chevron U.S.A.
v. National Resources Defense Council, he started what legal scholar Gary
Lawson later called “nothing less than a bloodless constitutional
revolution.”

At long last, on Wednesday, the Supreme Court will hear two cases that may
signal the beginning of the end to that revolution.

Article I of the Constitution explicitly directs that “All legislative
Power herein granted shall be vested in a Congress of the United States,”
not regulatory agencies.

Yet Justice Stephens’ opinion found that “agenc[ies] may . . . properly
rely upon the incumbent administration’s views of wise policy” in
“reasonably” defining statutory ambiguities.
The legal doctrine that Chevron spawned became known as Chevron deference
and former President Ronald Reagan’s White House counsel, Peter Wallison,
pointed to it as “the single most important reason the administrative
state has continued to grow out of control.”

The Supreme Court may end a trend set by Justice John Paul Stephens in
1984. Eric Kayne/ZUMA Press Wire / SplashNews.com
Forty years of regulatory and judicial tumult has ensued, finally
crescendoing to a point that has compelled the Supreme Court to intervene.

Loper Bright Enterprises v. Raimondo, from the District of Columbia
Circuit, and Relentless v. Department of Commerce, from the First Circuit,
are now before the court.

Both are companies that fish for herring in New England and are family-
owned and -operated, and both are subject to the Magnuson-Stevens Act,
which governs fishery management in federal waters.

The act allowed the National Marine Fisheries Service to require herring
boats, relatively small vessels that normally carry only five to six
people, to also carry federal monitors to enforce of its regulations.

As a next step, however, and without any express statutory authorization,
the NMFS decided to require Loper Bright and Relentless to also pay the
salaries of these monitors, estimated by the NMFS to be $710 per day, an
amount that can exceed the profits from a day’s fishing.

Both circuits validated this rule by pronouncing statutory silence to be
an “ambiguity” that required Chevron deference.

When it accepted certiorari in both cases, the court posed a two-part
question for the litigants to address: “Whether the Court should overrule
Chevron or at least clarify that statutory silence concerning
controversial powers expressly but narrowly granted elsewhere in the
statute does not constitute an ambiguity requiring deference to the
agency.”

These two options reflect the thoughts some of the justices have evidenced
in their prior opinions.

The two cases are Loper Bright Enterprises v. Raimondo, and Relentless v.
Department of Commerce. Getty Images
For example, in his majority opinion in West Virginia v. EPA, Chief
Justice John Roberts commented, “We presume that ‘Congress intends to make
major policy decisions itself, not leave those decisions to agencies,’ ”
citing US Telecom Ass’n v. FCC.

And in his dissent in City of Arlington (Texas) v. FCC, joined by Justice
Samuel Alito, he wrote that “The question [of] when an agency enjoys
[interpretative authority] must be decided by a court, without deference
to an agency.”

In their concurring opinion in West Virginia, Justice Neil Gorsuch, joined
by Justice Alito, referred to the “explosive growth of the administrative
state since 1970,” as well as former President Barrack Obama’s 2014
promise to use executive orders and administrative rules to bypass
Congress.

He wrote: “The Constitution does not authorize agencies to use pen-and-
phone regulations as substitutes for laws passed by the people’s
representatives.”

Similarly, Justice Clarence Thomas, in his 2015 concurring opinion in
Michigan v. EPA, asserted that the judicial power “requires a court to
exercise its independent judgment in interpreting and expounding upon the
laws,” adding that “Chevron deference precludes judges from exercising
that judgment.”

Interest in this case has been immense, with more than 65 amicus briefs
filed with the court by a wide range of interested parties.

Somehow, it might be fitting for this court’s ruling on the future of
Chevron deference to also be rendered on June 25 — 40 years to the day
after it was created.

When a decision will be forthcoming is unclear, but Chevron was originally
released on June 25, 1984, days from the end of that year’s term.

A ruling striking down that overly broad grant of power to federal
agencies is long overdue.

Thomas M. Boyd is a former US assistant attorney general, appointed by
President Ronald Reagan.

https://www.msn.com/en-us/news/opinion/supreme-court-poised-to-end-
constitutional-revolution-that-s-marred-us-governance-for-40-years/ar-
AA1mXArb

[Scout]

Post by useapen
When Justice John Paul Stephens issued his 1984 opinion in Chevron U.S.A.
v. National Resources Defense Council, he started what legal scholar Gary
Lawson later called "nothing less than a bloodless constitutional
revolution."
At long last, on Wednesday, the Supreme Court will hear two cases that may
signal the beginning of the end to that revolution.
Article I of the Constitution explicitly directs that "All legislative
Power herein granted shall be vested in a Congress of the United States,"
not regulatory agencies.
Yet Justice Stephens' opinion found that "agenc[ies] may . . . properly
rely upon the incumbent administration's views of wise policy" in
"reasonably" defining statutory ambiguities.

Which just opens to the door to what constitutes an "ambiguity".

If any ambiguity exists, they should either refer the issue to Congress to
resolve, or apply that ambiguity in favor of the citizen in all cases.

Period.

It is their duty to CARRY out policy, not to create it and certainly not by
deciding that policies on their view of that the current administration
MIGHT do.

Otherwise.. these ambiguities could change from administration to
administration and even from Agency personal changes.. Yes, it's legal, no
it's not, yes it is, etc..

Never once changing the actual language of the law, which IS the governing
factor.

Post by useapen
The legal doctrine that Chevron spawned became known as Chevron deference
and former President Ronald Reagan's White House counsel, Peter Wallison,
pointed to it as "the single most important reason the administrative
state has continued to grow out of control."

Yep, and watching members of the administrative departments testifying
before Congress, they never know anything about anything, they evade, delay,
redirection, distract and otherwise refuse to provide any meaningful answers
to direct questions. Yet, we're suppose to accept these same administrators
with the power to unilaterally decide what THEY thing the law should mean..

[David Hartung]

Post by useapen
When Justice John Paul Stephens issued his 1984 opinion in Chevron U.S.A.
v. National Resources Defense Council, he started what legal scholar Gary
Lawson later called “nothing less than a bloodless constitutional
revolution.”
At long last, on Wednesday, the Supreme Court will hear two cases that may
signal the beginning of the end to that revolution.
Article I of the Constitution explicitly directs that “All legislative
Power herein granted shall be vested in a Congress of the United States,”
not regulatory agencies.
Yet Justice Stephens’ opinion found that “agenc[ies] may . . . properly
rely upon the incumbent administration’s views of wise policy” in
“reasonably” defining statutory ambiguities.
The legal doctrine that Chevron spawned became known as Chevron deference
and former President Ronald Reagan’s White House counsel, Peter Wallison,
pointed to it as “the single most important reason the administrative
state has continued to grow out of control.”
The Supreme Court may end a trend set by Justice John Paul Stephens in
1984. Eric Kayne/ZUMA Press Wire / SplashNews.com
Forty years of regulatory and judicial tumult has ensued, finally
crescendoing to a point that has compelled the Supreme Court to intervene.
Loper Bright Enterprises v. Raimondo, from the District of Columbia
Circuit, and Relentless v. Department of Commerce, from the First Circuit,
are now before the court.
Both are companies that fish for herring in New England and are family-
owned and -operated, and both are subject to the Magnuson-Stevens Act,
which governs fishery management in federal waters.
The act allowed the National Marine Fisheries Service to require herring
boats, relatively small vessels that normally carry only five to six
people, to also carry federal monitors to enforce of its regulations.
As a next step, however, and without any express statutory authorization,
the NMFS decided to require Loper Bright and Relentless to also pay the
salaries of these monitors, estimated by the NMFS to be $710 per day, an
amount that can exceed the profits from a day’s fishing.
Both circuits validated this rule by pronouncing statutory silence to be
an “ambiguity” that required Chevron deference.
When it accepted certiorari in both cases, the court posed a two-part
question for the litigants to address: “Whether the Court should overrule
Chevron or at least clarify that statutory silence concerning
controversial powers expressly but narrowly granted elsewhere in the
statute does not constitute an ambiguity requiring deference to the
agency.”
These two options reflect the thoughts some of the justices have evidenced
in their prior opinions.
The two cases are Loper Bright Enterprises v. Raimondo, and Relentless v.
Department of Commerce. Getty Images
For example, in his majority opinion in West Virginia v. EPA, Chief
Justice John Roberts commented, “We presume that ‘Congress intends to make
major policy decisions itself, not leave those decisions to agencies,’ ”
citing US Telecom Ass’n v. FCC.
And in his dissent in City of Arlington (Texas) v. FCC, joined by Justice
Samuel Alito, he wrote that “The question [of] when an agency enjoys
[interpretative authority] must be decided by a court, without deference
to an agency.”
In their concurring opinion in West Virginia, Justice Neil Gorsuch, joined
by Justice Alito, referred to the “explosive growth of the administrative
state since 1970,” as well as former President Barrack Obama’s 2014
promise to use executive orders and administrative rules to bypass
Congress.
He wrote: “The Constitution does not authorize agencies to use pen-and-
phone regulations as substitutes for laws passed by the people’s
representatives.”
Similarly, Justice Clarence Thomas, in his 2015 concurring opinion in
Michigan v. EPA, asserted that the judicial power “requires a court to
exercise its independent judgment in interpreting and expounding upon the
laws,” adding that “Chevron deference precludes judges from exercising
that judgment.”
Interest in this case has been immense, with more than 65 amicus briefs
filed with the court by a wide range of interested parties.
Somehow, it might be fitting for this court’s ruling on the future of
Chevron deference to also be rendered on June 25 — 40 years to the day
after it was created.
When a decision will be forthcoming is unclear, but Chevron was originally
released on June 25, 1984, days from the end of that year’s term.
A ruling striking down that overly broad grant of power to federal
agencies is long overdue.
Thomas M. Boyd is a former US assistant attorney general, appointed by
President Ronald Reagan.
https://www.msn.com/en-us/news/opinion/supreme-court-poised-to-end-
constitutional-revolution-that-s-marred-us-governance-for-40-years/ar-
AA1mXArb

Could be interesting.