The entire regulatory process of the United States government is about to get upended. Pay close attention and try and follow the bouncing ball and in the process watch conservatives turn on a dime as their ox is gored.
It all starts with Reagan and Gorsuch and Ruth Bader Ginsberg and Chevron, and it ends, ingloriously, with the small and inelegant herring. Try and keep up,
When Ronald Wilson Reagan won the presidency, conservatives viewed the federal bench as the enemy. Twenty years before, federal judges like Frank Minis Johnson from Alabama desegrated the South. Federal judges took over school districts and various municipalities to enforce the law. The federal bench was manned (they were mostly men, except, amongst a few others like Judge Sarah T. Hughes from Texas, which any DeSantis judge under 40 can tell you administered the oath of office to LBJ on Airforce One hours after JFK was killed by LHO) by do good liberals.
Reagan appointed Anne Gorsuch Buford to run the EPA. She had a son named Neil. Maybe you've heard of him. Anyway, the EPA appealed the decision of some liberal do-gooder on the DC bench named Ruth Bader Ginsburg (Maybe you've heard of her) who stopped Gorsuch and Reagan's EPA from relaxing Jimmy Carter era restrictions on power plant emissions. The case was decided 6-0 by the US Supreme Court with Justice John Paul Stevens writing for the majority. By this time the case was called Chevron v. Natural Resources Defense Council. Conservatives wanted agencies and not federal judges to set regulations to enforce federal laws. In this case the EPA was being run by a conservative, so conservatives were pro-agency and anti-judge. Conservatives did not want do-gooders like the notorious RBG overruling agency decisions.
Stephens wrote that the Clean Air Act was ambiguous, and agencies were best equipped, with experts in the field, to enforce ambiguous federal laws. Federal Judges should stay out of agency decisions unless they were "not reasonable". While a victory for Reagan era conservatives, democratic presidents like Clinton and Obama used the decision to empower agencies to further their liberal agendas in enforcing laws that were ambiguous enough to allow the liberal heads of agencies to advance the liberal agenda of the president. It was a nifty piece of legal judo- liberals took a loss and turned it into a win.
Fast forward several decades and now the federal bench is populated by conservative men and women who, the conservatives now say, are much better equipped with their two or three law clerks, to enforce the laws of Congress. Conservative judges, the argument goes, have more expertise and ability to enforce EPA, or mining regulations, or FAA rules, than the agencies staffed by hundreds of experts.
In other words, the worm has turned. Bad (judges running things) is now good, and good (agencies with experts) are now bad.
And in a twist of fate, you know who led the charge at oral arguments this week to overturn Chevron? None other than Reagan EPA administrator's little boy Neil, all grown up and a Supreme Court Justice.
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| About to take down the federal government |
And what about the Herring you sharp eyed DeSantis judges are saying out loud? One of the two cases challenging Chevron is a family of herring fisherpeople who objected to an agency rule requiring them to have agency experts on their fishing boats to make sure the boats are following agency regulations to protect the north Atlantic herring stocks.
"By letting agencies construe laws when Congress did not think about the problem, means the government always wins" opined Justice Gorsuch during oral argument.
Things look good for the herring fleet, bad for the herring, and bad for the way government has been run for the last 60 plus years. Your local federal judge is going to be telling the FAA how to staff air controller towers, coal mines on mine safety, and nuclear reactors on how to stop meltdowns. Because they have so much more expertise than the agencies designed to enforce federal law.
Yeah, right.
Whose ox was gorsuched? Neil's ox.
23 comments:
Under Chevron the unelected bureaucrats of the administrative agencies have gone deeply into legislating beyond the laws enacted by Congress that they claim to be interpreting. Just look at the BATF under Trump and Biden to see its bureaucrats turning millions of law-abiding people into felons with the stroke of a regulatory pen at the political whims of presidents.
Amicus by the Q?
Rumpole, no matter what side we are on regarding this issue, I think we can all agree that this is a well written and interesting post, sprinkled with historical factoids here and there (who knew that that Neil Gorsuch's mommy was head of the EPA, or that Judge Sarah T. Hughes from Texas, administered the oath of office to LBJ on Airforce One? ed. - I'm 57 btw). Strong rhythmic prison clap.
Amicus by CATO was excellent. Cited by Paul Clement numerous times during his argument.
1:44 AM - What an utterly stupid, myopic take. I always forget how many Republican appointees lurk here!
Federal agencies overwhelmingly handle things more important than the fucking ATF. Like, say, your medicine. I'm surprised you didn't mention how much you hate the FDA too. I can't wait for the final wave of deregulation hits the Labor Department and your underage children get to work in factories. Just like grandpa did! Conservative values!
A step in the right direction. The central problem here is that Congress lacked the political will to do its job: legislate. So easy to pass a law and then pass the buck to a regulatory agency. Now, Congress will have to write laws with the necessary specificity so that courts can interpret them and the executive branch can enforce them. If you cannot perform that simple task then maybe you should never have written the law to begin with.
1:44 How silly of you. Why would really smart liberals think that Congress should pass laws when they can have their Pinko friends enact rules? Fortunately, this will all end, assuming not too many ballot boxes are stuffed, on January 20,2025
In more local news, Jonathan Stephen Schwartz has been disbarred.
https://supremecourt.flcourts.gov/content/download/1580423/opinion/Opinion_SC2019-0983%20&%20SC2021-0484.pdf
He had already been suspended back in 2022, but I guess that wasn't enough.
When I started as an ASA in '98, we were warned in training that Schwartz was a slimy attorney. Every encounter I had with him, he was slimy. From flat out lying to judges to filing Notices of Expiration in branch court at 4:45 on a Friday, he was just flat out a sleazy lawyer. Not sure why, but so be it.
24 years later, karma catches up.
12:08, you don't seem to understand the role of Congress. They really can't micromanage every wrinkle of every policy. But if Congress thinks an agency is messing up a law by applying the wrong policy, they sure can change that. You just have no recent examples in mind because the Republicans have been trying to take the American government ball away and go home for years now. Their ideology is anarchy or possibly nihilism. And if you put 200 of them together they can't even collectively go to the bathroom a total of 100 times per day.
If your basic ideology is that the government is too intrusive, to big, and evil -- then abolishing Chevron deference might seem like it checks all your boxes. Congress will NOT pass a sufficient number of laws to fill the gaps (the "ambiguities" in the statutes to which Chevron deference attaches). SCOTUS already has sandpapered the rough edges of Chevron deference under the "major questions doctrine" holding that big issues cannot be shoehorned by an agency into the rubric of "ambiguity". So, abolishing Chevron deference altogether will likely mean that rules that would regulate, deter or punish conduct 90% of the people think is mis-conduct will not be made.
12:08 I guess it is easy to claim that all Republican want to do this or that, The fact is that Congress routinely handles corrective bills. It delights me that you think that changing views every administration is better than senate-confirmed judges. So, I guess we can say that all Democrats, of which I am one, are happy with an obviously senile president whose powers are being handled by God knows who is just the way to go.
I guess we all have to sit around and wait who Barack and Michelle want to be the Dem nominee this summer.
11:59 pm let me give you another side. I was an ASA in 1986 when Schwartz started. I had come from law school in NYC where I worked for a top criminal defense attorney. So unlike some of my colleagues I had a respect for good criminal defense. I used to go and watch Roy Black and Richard Sharpstein and HT Smith and Ed O’Donnell and even Sy Gaer try cases as well as watching great prosecutors like Abe Laeser and David Gilbert and David Waxman and Kevin Digregory. All legendary REGJB trial lawyers in my opinion.
I saw in Jonathan someone who cared but just went about it the wrong way. But he was brave. And he tried. And yes the road to hell is paved with good intentions. Judge Sepe had corrections set aside a cell for him and routinely held him in contempt and had him taken away for a few hours ( unlike the time a now departed circuit judge had me cuffed and placed in the box for asking for a continuance after picking a jury as a prosecutor because the lead detective crashed his light plane the night before and was in the hospital. But those were different times. )
I think Jonathan’s biggest sin was not maturing and learning from his mistakes. I understood what he was trying to do with the deposition thing and the photo lineup. Witness identification is perhaps the single biggest reason for wrongful convictions if you read the scientific literature. He just went about it the wrong way. Slimy? No. Just wrong.
I come from a generation where lawyers made agreements in the hallways and you didn’t need it in writing. Now you want to see slimy? How about when the Feds send a terabyte of discovery and somewhere in the pages between 100,000 and 200,000 is exculpatory material. But I don’t call them slimy. I just alert the judge that we should expect better from the department of JUSTICE .
Let’s not kick him when he’s down. He’s suffered enough. I’m nearing the end of being a lawyer and while I’d like to do other things I always try and remind myself of the privilege of my law license. And I don’t celebrate anyone losing theirs.
Judge Ed Cowart used to say “bless your heart” many times when a lawyer made an objection. (Remember those were different times ). He was a brilliant judge. Probably the best and smartest our building has ever seen. It took me a while to figure out it was his way of gently denying my objection and telling me to think more. He was being kind. And we all could use more kindness in our work. Just a thought.
As someone who regularly practices before the FDA, I can tell you that the regulatory system is horribly opaque and that Chevron is garbage. But, borrowing from Churchill, [Chevron] is the worst form of [regulatory oversight] – except for all the others that have been tried.
12:21am and 9:32am got it just right.
This is not 1788 or even 1984. The world, and our economy, is too big and complex for 435 professional politicians to ever be able to effectively regulate commerce and society. Returning to a pre-Chevron system would be somewhere between anarchy and a litigation apocalypse.
Judge Cowart was the best ever. No one comes close to him. I certainly would not call Gilbert "legendary" At best he could ask "what happened next". Not difficult. I would add Phil Carlton, Bobby Hagard,Bill Clay, Jack Denaro,and even Norman Haft as legendary. Sy was a walking Rule 3. No one should practice like that. Certainly not an inspiration to young lawyers.
There is absolutely nothing slimy about filing notices of expirations on Friday at 4:45. If the case expired, let the State figure out why their case is in the NOE period and get their witnesses to testify.
Your flippant dismissal of Sy is just unwarranted. I saw him win plenty of serious felony cases. I saw him destroy the state in an NGI case and handle a jury during selection that was openly hostile calling NGI a legal loophole. Sy won the case. He was at his most dangerous in cases where there seemed to be no defense. He probably was not the right lawyer for every case but then again who is ?
And I tried a case against Phil Carlton and his son Phil jr. Three Phils in an REGJB courtroom. Probably hasn’t happened since. And they were both excellent as was Bill Clay and Jack Denaro. I saw Norm Haft storming around the building. I was there when he got in a fight with his client (and one of them stabbed the other with a pen at counsel table I just forget who stabbed who) but I don’t consider him as good as the others.
Judge Cowart was the best ever, no one even close, and the best and smartest our building has ever seen? Really. Your old dudes who like to reminisce are delusional. Cowart was a great Judge, no doubt. But do your honestly believe he could hold a candle to Judge Hanzman intellectually or could ever write the type of Orders he cranked out on a weekly basis? Maybe Cowart was better all around ( doubt it) but to say that no other Judge comes close to this romanticized legend shows that you have no objectivity or credibility.
Cowart had a blend of genius smarts - he was rumored to have the top bar score ever seen during his time , and humble southern roots. You don’t meet people like him anymore. And that was the perfect blend for a judge. No team of big law lawyers could move him off a point if he was right and yet the most humble uneducated and poor person before him got as much time and attention as the team of lawyers. We are not delusional. He just was the best. Hanzman was good and undeniably smart. But Cowart was in a class by himself. Hanzman could be short and snippy at times. Cowart was not.
Pretty sure Hanzman was always short!
I spent a great deal of time before Judge Cowart, and he was hands down the absolute best … I wish I could tell some of my favorite stories, but the best ones might not translate well into 2024. That said, he left us way too soon, and we will never see the likes of him again !!
I came in at the end of Sy Gaer. He was still a good lawyer and seemed to do a lot of low level drug cases and also murders. He had a reputation as someone who could win and had helped a lot of people out. He argued a lot. He was too old and should have retired, one of the few negatives of our deal is we don’t save enough money, it’s great to do this work but you don’t want to die in the courtroom. I now know enough people in the same places Sy worked to know he made a difference. A lot of people, a lot of life, was saved by Sy Gaer.
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