Popehat: If you’re not a law nerd, and you’re wondering why people who are not themselves theocratic fascists would support theocratic fascists, it’s to achieve this: to limit the power of the regulatory state.

If you’re not a law nerd, and you’re wondering why people who are not themselves theocratic fascists would support theocratic fascists, it’s to achieve this: to limit the power of the regulatory state.

NEW: SCOTUS could soon overturn the "Chevron doctrine," upending numerous federal regulations designed to protect the public. At least 20 right-wing groups linked to court-whisperers like Charles Koch and Leonard Leo have backed the assault on Chevron. therevolvingdoorproject.org/amicus-spotl...

Amicus Spotlight: Loper Bright & Relentless | Revolving Door Projecttherevolvingdoorproject.org 20 right-wing groups linked to court-whisperers want SCOTUS to make its most dangerous regulatory power grab yet.

/2 The argument FOR the regulatory state is more or less a confession of the failure of American politics: if you relied on Congress, women would still be taking Thalidomide for morning sickness, because there’s no democratic consensus for health and safety regulation.

/3 I do not thus mean to diminish the legitimate arguments that Congress is both too stupid and too busy hearing antisemitism on campus hearings to evaluate whether or not Thalidomide is bad.

/4 Also, eliminating Chevron deference is not returning power to Congress. It’s giving more power to judges interpreting federal regulations. Like the Fifth Circuit. Anyway have a swell day.

i wld like to speak to a manager

The manager is too busy being upset about university students being mean

Every ruling that "only Congress can do such-and-such" is written with the implicit understanding and enjoyment of the fact that Congress can't tie its own shoes.

Oh hey I suddenly thought of @paddyunidos.bsky.social ‘s meme again. Weird. bsky.app/profile/padd...

For aviation, this would gut much of the safety and design oversight the FAA provides. In turn, the FAA's European counterparts, EASA, would be setting design and operational standards. Because Congress sucks.

Yes.

FWICT it depends on whether they go back to just before Chevron (which IIRCwould affect the FAA far less than the SEC) or if they go further.

I'm not looking forwards to learning where between "giant mess" and "fucking catastrophic mess" this ends up.

Correct, but new rules to handle new technology and science would be DOA at a Congress. EASA would be the regulatory agency that will be setting the higher standards everyone must meet (at least in areas the EASA isn't already).

Thalidomide was not approved for pregnant women in the US, only in Europe. An example of the government, through the FDA, doing its job to ensure public safety. www.reuters.com/article/idUS...

FDA did not approve thalidomide for pregnant women in 1950s or 1960swww.reuters.com This article has been updated to include a name.

Exactly. FDA regulators did their job. If it had been left up to Congress and lobbyists, we'll, we know what would've happened.

Somebody told MTG that thalidomide kills COVID so now it's on shelves next to the Mucinex!

Same thing that happened with leaded gas, which is that it was allowed to destroy the brains of a generation and a half of American children.

The FDA has only very rarely prevented off label usage of drugs though. Which is not necessarily a bad thing, but it certainly doesn't make thalidomide an example of the FDA ensuring public safety.

I made the mistake of taking an 8 am class once. It was Administrative Law. Somehow I did well despite frequently oversleeping. But I remember none of it, and don't encounter Chevron in my practice. So I appreciate the insight!

acomment a couple years ago from my favorite business advice place (ask a manager) about my favorite legal fellow ❤️🙏☀️

well i don't know much about the fifth circuit, but i'm sure they're sober, thoughtful judges, let me just go read about them...

On that score nondeference seems like a poor substitute for nondelegation, which is frequently conflated with nondeference but AIUI really quite different and more radical, and is the logical endpoint of the anti-executive-discretion argument.

😢

Who needs rules written by SMEs when we can just rely on the innate intelligence and impartiality of judges? What could go wrong?

Question: If we had a functioning Congress, could it pass a law that would accomplish the goals of Chevron?

More power to judges, but less power to administrative bureaucrats. That feels like the right direction. Of course the devil is in what replaces Chevron deference if the court strikes it down. It seems alarmist to assume agencies will be stripped of all interpretive powers.

Let's take a look, shall we? The FAA: who is more likely to know most about aviation? A judge? Or an "unelected bureaucrat" - who happened to spend their previous career in aviation? Or the CDC. Again, who do you want setting health policy and approving medications? Judges or epidemiologists?

I want aviation experts and epidemiologists setting policy if and only if Congress authorizes them to do so. If Congress has been unclear about their authority, that's a matter of statutory interpretation best left to judges.

You'll miss the regulatory state when it's gone.

I am so thankful that my law school required both an international law class and an administrative law class as part of 1L and 2L.

At the most basic level, I do not expect politicians to be experts in every conceivable field. Ideally, I expect them to be effective at recognizing expertise and putting people with specific skills in place to do good work.

My very non-law nerd take is that agencies should have some common sense ability to interpret and implement regulations BUT shouldn’t also be judge, jury, and executioner in regard to enforcement. Is that … valid?

yes it's a balancing act of regulators with specific subject matter expertise intelligently interpreting the will of congress but to be clear the real goal here is for corporations and right wingers to bog down federal governance and reform across an ocean of fronts in perpetual legal gridlock

Yeah I get that part

the press coverage of all of this has been profoundly terrible "both sides" dogshit so I'm never quite sure what people have read or understand in relation to what's coming

Yes, there is a very interesting debate to be had to find the right amount of deference to be applied and in what circumstances, but nuanced discussion isn't so easy these days, particularly in and about the Court.

That's why we have judicial review.

For stuff like safety regulation in changing industries you almost need them to, but law should definitely set the scope still.

If congress had to set regulations at that nitty gritty level, you'd basically have to move the entire regulatory state (in terms of staff) out of the executive and into the legislative. But as you've said, the setting of the regulations by the legislature would have to actually function.

Thalidomide. Oh my.

I, for one, would prefer not to have new pharmaceutical approvals or nuclear power plant regulations decided by Marjorie Taylor Greene and Tommy Tuberville. But maybe that's just me?

I’m going to disagree with this one. It’s more of a confession that the complexities of modern civilization and the modern economy require expert understanding to regulate, and no elected generalist can be expected to do that well. This isn’t a failure, it’s an emergent property.

Someone is going to say, non-ironically, we can just get ChatGPT to write the regulations.

It’s already being said, believe me.

See, this is why you should give up all faith in humanity early on. No hope, no disappointment. (This is one of those "if it actually worked" things. If "AI" worked, it could 'read' 10,000 pages of rules and tell you if you were breaking them. But as the NY legal "AI" proved, it DOES NOT WORK.)

NYC AI Chatbot Touted by Adams Tells Businesses to Break the Lawwww.thecity.nyc The Microsoft-powered bot says bosses can take worker’s tips and that landlords can discriminate based on source of income. That's not right.

To electeds like Adams, the only difference between an AI and an "unelected bureaucrat" is the AI doesn't talk back.

In all seriousness, the burdens on the rulemaker/regulator are the requirements of the administrative process itself when trying to get rules adopted/changed.Often, rulemaking teams are overburdened, and managers are looking at AI tools as a way to check the requirement boxes.It's already happening.

Congress simply doesn't have the calendar time to deal with every needed regulation

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