2024

DEMOCRACY IS A STUBBORN TASKMASTER:

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.

HOW MITCH FAILED:

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).

IT’S SUPPOSED TO BE HARD:

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.