The end of Chevron deference isn’t the end of regulation (KEVIN R. KOSAR, 07/09/24, The Hill)

Last week, I had coffee with a wonk who works on immigration policy, a political moderate who is trying to get Capitol Hill to have a sane, bipartisan conversation about the topic and enact reforms. It is a challenge, seeing as how legislators frequently behave as if they would prefer to campaign and fundraise on the issue rather than bargain out a deal.

I mentioned to her that I had been writing a lot about Congress and regulation, and that the Supreme Court’s recent rulings have added to my workload. She responded to my mention of Chevron deference by declaring, “I’m glad the ruling happened. That means if there is a Trump administration then Stephen Miller will not have as much authority to make immigration policy.”

I laughed because she is right.

The court’s rulings in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce do mean that Miller would have to be a bit more cautious in issuing regulations to reduce immigration and expel migrants. They could no longer do whatever they can pass off as a reasonable interpretation of the statute and that presume that their policies will receive judicial deference.


The Supreme Court’s decision in Trump v. United States is solid but risky legal reasoning that reflects the failure of constitutional order (Kathleen Tipler, July 9th, 2024, LSE Blog)

As a legal scholar who has been thinking about this question of presidential immunity for a number of years, my take is different. I think the decision is a reasonable opinion. I do disagree with it, but it is not because this decision puts presidents above the law – I think the Roberts opinion left the door open for prosecution of Trump, including ones that the dissenting opinions declare impossible – nor is it because this decision is based on specious legal reasoning. I disagree because of the larger approach it takes to the constitutional order. […]

While the constitutional question facing the Supreme Court in Trump v. United States was the extent of presidential immunity, the case itself involves a former president who attempted to overturn the election that voted him out of office. If the authors of the Constitution anticipated such a situation, they thought Congress would handle it – the Constitution explicitly gives Congress the power of removing the president for “high crimes and misdemeanors.” And that’s what should have happened. But instead, because of the various ways in which our country has changed over the past 250 years, Congress failed to do so.

So, this failure by Congress, this failure of the constitutional order, puts the Supreme Court in a bind. Essentially, the Court had two options here, as they often do, given our ancient Constitution: they could stay in their lane, and limit judicial review of presidential actions (broader presidential immunity, careful and slow judicial process), or they can try to make a broken system work, step in where Congress failed, and have the judiciary review presidential actions (limited or no presidential immunity, expedited judicial process).


Christian Institutionalism in Miles Smith IV’s “Religion and Republic” (Jeffrey Cimmino on July 8, 2024, Providence)

Smith’s critical contribution is to eschew the rhetorical extremes of the left and right that recast late 18th century America as either embodying rigid church-state separation or as a purer, more sacral time in our erstwhile Christian republic. Smith characterizes the early United States as “a republic of Christians committed to what I have termed ‘Christian institutionalism.’” Christians “wanted to maintain Christian precepts in their nation’s various social and political institutions without sacralizing those principles or subordinating the American republic to a church.”

Phrased in negative terms, Smith proposes “that the United States Constitution’s disestablishment did not secularize society, nor did it remove institutional Christianity from the civic, state educational, or political spheres.” It also “did not create a unitary social or semi-sacralized Christian nation as some conservative evangelicals and neo-theocrats argue.” The “religious order” enacted by the Constitution “was liberal in its views on establishmentarianism and at the same time conservative on its conceptualization of Christianity’s place in the civil and social orders and in its intellectual influences.”

There was a widespread view in the early republic among Christians (and the few non-Christians) that church and state, even with disestablishment, retained “their mutual purpose of creating and upholding a moral order committed to historically Christian conceptions of virtue.” The notion of a strict wall of separation between church and state, moreover, finds little currency in the views of the authors of the Constitution. Congress, for example, used public funds to pay for Congressional chaplains and reauthorized the Northwest Ordinance, which went so far as to declare religion “necessary to good government and the happiness of mankind.”

Transcending notions of state churches and establishment, Smith writes that “Christians remained committed to upholding Christian institutions in the civil, political, and social structures of the American republic,” in order to sustain America as a Christian nation. This institutionalism can be seen across numerous spheres of the early republic.


Humanely Conservative: a review of The Wisdom of Our Ancestors: Conservative Humanism and the Western Tradition By Graham James McAleer and Alexander S. Rosenthal-Pubul. (Reviewed by Lee Trepanier, 7/07/24, University Bookman)

Conservatism represents a middle ground between a cosmopolitan liberalism and a tribal nationalism. Within this middle ground, particularist loyalties to the family and nation exist but within a Christian framework where all human beings are ultimately valued and accepted.

The second part of “conservative humanism” is an educational movement that is classical and Christian, but not modern. Classical humanism is from the Greek and Roman world of intellectual, moral, and aesthetic formation, while Christian humanism recognizes that every person has an intrinsic and transcendent dignity since humans are created in the image of God. The classical and Christian combination of humanism stands in stark contrast to its modern counterpart which starts from the Enlightenment and reduces human nature to materialism, whether biological or technological. For McAleer and Rosenthal-Pubul, the “humanism” in conservative humanism is the cultivation of the individual in the Greek, Roman, and Christian sense where the person “affirms an obedience to a moral order transcending our will.” By recognizing a moral order outside of the individual, the conservative humanist accepts the limitations of the human condition and attempts to live a flourishing life within them.

This understanding of conservative humanism is the thread that connects the chapters in McAleer’s and Rosenthal-Pubul’s book, which, the authors admit, are a commentary on the themes found in Roger Scruton’s The Meaning of Conservatism. These themes include humanism, conservatism, the establishment, natural law, free enterprise, and freedom. In the first two chapters about conservatism, McAleer and Rosenthal-Pubul emphasize its associational aspects—the family, the church, and private schools—as well as the value of humanism which is “the master idea of our civilization.” According to the authors, conservatives are to defend humanism, the transcendent dignity of the individual person, against the ideologies of totalitarianism, tribal nationalism, and transhumanism.


Reformist Masoud Pezeshkian wins Iran’s presidential runoff election (The New Arab, 06 July, 2024)

Reformist candidate Masoud Pezeshkian won Iran’s runoff presidential election on Saturday.

He bested hard-liner Saeed Jalili by promising to reach out to the West and ease enforcement of the country’s mandatory hijab law after years of sanctions and protests squeezing the Islamic Republic.

A vote count offered by authorities put Pezeshkian as the winner with 16.3 million votes to Jalili’s 13.5 million in Friday’s election.


The Supreme Court Thinks That by Arguing More, We Can Be Less Divided (Yuval Levin, 6/28/24, The New York Times)

This decision has set off alarms for some, but it actually points the way toward a role for the courts that is less divisive — because it pushes everyone in our system, including judges and Congress, toward their proper constitutional work.

By narrowing the so-called Chevron deference, the court has reasserted its authority over the meaning of vague legislation. Doing so may press Congress to make its law-writing more definitive and call on administrative agencies to apply substantive subject-matter expertise, rather than conjure the meanings of the laws they are meant to carry out.

The Loper Bright case highlights a broader pattern. It is just one of several high-profile disputes the court has taken up this term — others touch on social media, guns and more — and the results have often been met with outrage and harsh criticism of the court.

But it’s worth seeing that it is often the very fact that we turn to courts to resolve these disputes that ratchets up tensions in our society. That is why the court seems eager to recover the constitutional system’s balance of authorities, and to help relieve those tensions.

Many of the divisive questions that reach the Supreme Court could be addressed legislatively rather than judicially. But a lawsuit offers combatants the prospect of total victory rather than unsatisfying compromise, and Congress is now often eager to hand power to administrative agencies whose edicts are inevitably appealed in court.

With its Loper decision, as with some other high-profile cases in recent years, the court is trying to change that pattern. By pushing all the individuals involved to do the particular jobs assigned to them by the Constitution, it is charting a path toward a more legislatively centered political order, in which more decisions about what the law should be are reached by haggling and bargaining rather than by expert fiat or judicial pronouncement.

The Constitution itself clearly shows a preference for this approach. But the tendency to prefer assertive judicial action is now thoroughly bipartisan, which contributes to our bitter polarization.

The revealing thing about the objections to the Court restoring constitutional order is that the complaint concerns how much harder it makes it to regulate every day life.


Biden’s gameplan against tech giants faces new legal dangers (Cristiano Lima-Strong and Eva Dou, July 5, 2024, Washington Post)

The Biden administration’s aggressive attempt to regulate tech and telecom giants like Google, Meta and Verizon has relied on the power of federal agencies, which have proposed sweeping rules for the internet age amid inaction in Congress.

The dynamic has granted outsize influence to enforcers at the Federal Trade Commission and Federal Communications Commission, among other agencies, who have pressed to rein in alleged misconduct by industry titans.

The strategy is now under threat after the Supreme Court curtailed agencies’ powers in a landmark ruling, overturning a decades-old legal precedent giving agencies greater leeway to interpret ambiguous federal laws. The court’s decision Loper Bright Enterprises v. Raimondo last week, striking down a principle known as the Chevron deference, has given business and industry groups ammunition to thwart tighter tech regulations proposed by the administration — imperiling some of the most significant actions ever by the U.S. government to check the world’s most powerful companies. If they succeed in slowing regulation, it could put the United States further behind its counterparts in Europe, who have moved more swiftly to set new rules.

the entire argument–that it’s so much easier to just impose laws via the Executive branch than to hash them out in the Legislature–is self-indicting.


Handles like a go-kart, flies like a heli: Flying car coming to the USA (Loz Blain, July 05, 2024, New Atlas)

Effectively, it’s a small, single-seat helicopter with automatic quick-fold rotor blades, with a bare-bones open-wheel vehicle chassis grafted on, using carbon fiber rods. It’s not precisely clear exactly where the electric part of the hybrid drive system comes in, but the combustion power appears to come from a lightweight, buzzy “Pegasus 800” two-stroke, making around 160 horsepower.


Net Neutrality, and other FCC Initiatives Jeopardized Post-Chevron (Clay Calvert | Daniel Lyons, 7/05/24, AEIdeas)

Loper Bright is part of the Supreme Court’s broad critique of the administrative state’s power—a power perhaps best exemplified by then-President Obama’s infamous “pen and phone” strategy. Stymied by Congresses unable or unwilling to legislate, presidents from both parties increasingly used agencies to enact their policy decisions through statutory ambiguities. Chevron facilitated this end-run around the legislature by commanding courts to defer to an agency’s statutory interpretation if reasonable, even if the agency’s conclusion was not the best reading. The Major Questions Doctrine signaled the court’s discomfort with abuse of this power, and Loper Bright significantly narrows agencies’ ability to do so going forward.

Just how much agencies’ wings have been clipped is unclear. The judiciary’s job is to determine the meaning of a statute. The Court recognized that sometimes Congress intends a statute to delegate discretionary authority to an agency. And under the Skidmore doctrine, an agency’s interpretation can be persuasive evidence of a statute’s true meaning, though how persuasive depends on how convincing that interpretation is and how consistent the agency has been over time. But Loper Bright rejected Chevron’s fiction that every statutory ambiguity is a Congressional invitation for agencies to fill the gaps. Going forward, deference must be either expressed by Congress or earned by the agency, not assumed by default.

What does this mean for the FCC? The Communications Act is often difficult to read—the Supreme Court once called it a “model of ambiguity”—meaning the FCC often benefited from Chevron. In that sense, the post-Chevron era will create challenges for the agency. The recent net neutrality decision, for example, turns on the Act’s complicated distinction between “communications services” and “information services,” definitions written at the dawn of the Internet age. As I discussed earlier, one significant byproduct of Chevron was that the FCC could change its mind repeatedly about how to classify broadband—indeed, the court cited the FCC’s indecision as an example of how Chevron bred legal instability.


Freedom and a Funeral for Chevron Deference (Jonathan H. Adler, July 4, 2024, AIER)

In theory, Chevron was supposed to help provide greater legal certainty, both by providing judges with a clear framework and producing greater uniformity of federal law. In practice, the doctrine appeared to serve the latter purpose, in that it fostered greater agreement across federal courts and seemed to reduce the extent to which judges’ policy preferences influenced their decisions. But it did not produce stability or predictability. To the contrary, it empowered agencies to revise and reverse their statutory interpretations to align with their policy goals, and so long as no court declared that the statute was clear, they could get away with it. Chevron itself involved a Reagan Administration reversal of Carter Administration policy, and the doctrine has been used to justify agency about-faces on the meaning of regulatory laws when the White House changes hands.

Republican liberty exists to protect citizens from such arbitrary and capricious prosecution.