THE CONSTITUTION SEPARATES POWERS:

No, Overruling Chevron Won’t Turn Judges into Policymakers (Thomas A. Berry, 7/03/24, Cato)

First, a quick recap of the (now overruled) Chevron doctrine. In Chevron v. NRDC (1984), the Supreme Court announced a new “two‐​step” framework for resolving disputes over the scope of an agency’s statutory authority. Under this standard, a court must first consider “the question whether Congress has directly spoken to the precise question at issue.” This first question should be “the end of the matter” if “the intent of Congress is clear,” because courts “must give effect to the unambiguously expressed intent of Congress.” At this stage, courts must employ “the traditional tools of statutory construction” to ascertain whether “Congress had an intention on the precise question at issue.”

It was the second step that would make Chevron a landmark case. If a court finds that “Congress has not directly addressed the precise question at issue,” then under Chevron the agency’s interpretation can become determinative. In this situation, Chevron instructed that a court should “not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation.” Instead, courts should ask “whether the agency’s answer is based on a permissible construction of the statute.” If the answer is yes, Chevron required that the court defer to the agency’s interpretation.

It is this second step that Loper Bright eliminated. The premise underlying Loper Bright is that the second Chevron step is incoherent because there is always a single best reading of a statute. “In an agency case as in any other, … there is a best reading all the same—‘the reading the court would have reached’ if no agency were involved.” As the majority put it, “statutes, no matter how impenetrable, do—in fact, must—have a single, best meaning.” And if that is so, then it “makes no sense to speak of a ‘permissible’ interpretation that is not the one the court, after applying all relevant interpretive tools, concludes is best. In the business of statutory interpretation, if it is not the best, it is not permissible.”

Throughout the Loper Bright majority opinion, the court reiterated that Chevron was about who decides legal questions, not policy questions. “It is reasonable to assume that Congress intends to leave policymaking to political actors. But resolution of statutory ambiguities involves legal interpretation.”

HOW UNMOORED ADMINISTRATIVE LAW IS FROM THE CONSTITUTION:

Facts Matter: CFPB Attempts to Use a Blog Post to Rewrite a 46-year-old Payments Statute (WESTON LOYD, 5/30/24, CBA)

Remarkably, the CFPB asks the court to rewrite the plain language of the Electronic Fund Transfer Act, and effectively reverse decades of settled law. By issuing the blog post, the CFPB presumably would apply this new “rule” to the industry at large.

Key Findings

The Electronic Fund Transfer Act and the implementing regulation, CFPB’s Regulation E, clearly excludes Wire Transfers.

Yet the CFPB now asserts that wire transfers initiated via electronic means are covered under Regulation E (rendering Regulation E’s exclusion meaningless).

The CFPB’s new interpretation of Regulation E would reverse decades of court decisions as well as the CFPB and Federal Reserve’s own prior regulatory filings.

Attempting to stretch electronic payments laws beyond their bounds is not a viable solution to address scams and fraud. Scams and fraud are serious, interdisciplinary problems. The financial services industry is working with stakeholders across other private sector industries, but need the CFPB and other agencies to commit to collaborating thoughtfully and earnestly in order to reduce the risks consumers face from scams and fraud.

A HIGH BAR:

From Judges to Justices: Keeping Executive Power in Check Is an Ancient Problem (HARVEST PRUDE, JULY 2, 2024, Christianity Today)

Daniel Darling, who is director of the Southwestern Baptist Theological Seminary’s Land Center for Cultural Engagement and has been critical of Trump, said reactions to the decision were perhaps overblown.

“Despite the screaming, the Court has strengthened democracy,” he wrote on X. “Trump has to prove his election-meddling was part of official acts. The government has to prove they weren’t. The court seems to lean in the direction that they weren’t.” […]

While the case on the surface deals with weighty legal matters of contemporary politics, one legal expert said the questions around the rule of law at the heart of the case are the same controversies that biblical figures wrestled with in the Old Testament.

“Much of the Old Testament are stories of kings abusing their power,” Robert Cochran, professor emeritus at Pepperdine’s Caruso School of Law and coeditor of a 2013 InterVarsity Press book, Law and the Bible, told CT.

He pointed to the story of King Ahab, who coveted a vineyard owned by a man named Naboth. Naboth refused to sell. So Queen Jezebel had him killed, and Ahab took the vineyard.

Prior to Israel installing a king, the nation suffered from the opposite problem of general lawlessness. The Book of Judges explored the need for someone to be in charge, due to chaos caused by human sin, and the concern that human-held power is liable to corruption.

Cochran pointed to the last five chapters of Judges, where people unrestrained by the rule of law committed rapes, mass murders, kidnappings, and forced marriages (Judges 17–21).

“At the end of each story appears the refrain ‘In those days Israel had no king; all the people did whatever seemed right in their own eyes,’” Cochran said, citing Judges 21:25 (NLT). “The implication is clear: Israel needs a strong executive to enforce the law.”

But establishing a king did not fix ancient Israel’s problems either.

Imagine that Republican attorney generals could charge Joe criminally for all the bogus stuff they whinge about?

CAN’T HAVE A CLASH OF CIVILIZATIONS WHEN THERE IS ONLY ONE:

Why Is Xi Not Fixing China’s Economy?: Explanations from insiders range from ignorance to ideology. (Scott Kennedy, 6/30/24, Foreign Policy)

There were four views that commonly came up on why Xi and other top leaders haven’t taken a different approach, which we might dub “The Four Nos” in Chinese political style. The first is, “He doesn’t know.” Some have speculated that Xi is being kept in the dark about the sour state of the economy by cadres who do not want to give him bad news for fear that he would blame the messenger. And so, the thinking goes, they only provide him with sanitized, positive reports. […]

The second idea, “He doesn’t know what to do,” is based on the premise that Xi and other top leaders are well informed but they are facing a variety of problems that are not easy to fix. The list is long—the real estate crisis, ballooning local government debt, the plummeting fertility rate, rising inequality, disaffection in Hong Kong, and expanding tensions with the West and most of China’s neighbors—and solutions are far from simple. […]

The third option, “He doesn’t care,” is rooted in the hypothesis that Xi’s top priority is strengthening the CCP’s monopolistic hold on power and his own personal political dominance. Although the media shows him visiting factories and holding discussion sessions on various economic challenges, his own daily schedule may be dominated by managing security and political issues, including personnel decisions, not the economy. […]

The final answer, “He doesn’t agree,” speculates that the issue is not Xi’s insufficient access to information, indecisiveness and incompetence, or a lack of interest but rather that he and his lieutenants disagree with the criticism that the current policy line is incorrect and not up to the challenge.