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Chevron Doctrine agy

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primary 7 24

note CU amicus

aka deference

see admin state see dereg see corps

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AN NO LNX

'Gotta be kidding': Jim Jordan scrambles as he's confronted over Musk 'double standard'

U.S. Rep. Jim Jordan (R-OH) listens to House Oversight Committee Ranking Member Rep. James Comer (R-KY) during a House Oversight and Government Reform Committee hearing on "The Urgent Need to Address the Gun Violence Epidemic," on Capitol Hill in Washington, U.S., June 8, 2022.

REUTERS/Jonathan Ernst

Matt Laslo and Raw Story February 18, 2025

WASHINGTON — What emails?

That’s the mood from congressional Republicans these days as allegations of private servers and accessing sensitive, private data swirl about this White House.

In 2016 alone, House Republicans issued more than 70 subpoenas or investigative inquiries into Hillary Clinton and her private server.

Many of those same Republicans are now shrugging off fears that Elon Musk and his Department of Government Efficiency — a.k.a. DOGE — are flouting government protocols while scouring government databases in their effort to purge federal workers.

But Republicans are about to have a reckoning. Last summer the Supreme Court gave this Congress homework — work policymakers on Capitol Hill haven’t had to do in the past 40 or so years: Write precise rules and regulations instead of leaning on experts in federal agencies to flesh out the policy specifics after Congress passes a bill.

It’s unclear if the contemporary Congress is up to the serious task of policymaking, especially the 119th Congress, which is brimming with technophiles focused on clicks, viral videos and digital dunking.

In the month since Trump took his oath of office, critics say, instead of standing up for Congress and flexing the new powers the Supreme Court bestowed on the institution, congressional Republicans have all but surrendered their oversight responsibilities as they’ve ceded unprecedented power to President Donald Trump and his billionaire sidekick, Elon Musk.

All this talk of a ‘constitutional crisis’ may be a tad premature. What’s certain is America’s in the midst of a congressional crisis — one the current Congress may not be able to withstand.

In more than a dozen exclusive interviews, Republicans on Capitol Hill tell Raw Story not to rule Congress out yet, even as critics fear there’s not going to be much power left for legislators to reclaim with the GOP ceding so much legislative turf to Trump and DOGE at the start of this new administration.

“I'm delighted”

Several Republicans who spoke to Raw Story are cheering for Musk and Trump to dismantle the very federal government set up by Congress in recent years and decades.

“Do you worry that you guys are ceding a little too much power?” Raw Story asked Sen. Cynthia Lummis (R-WY) while walking through the Capitol.

“Well, I hate to say this, but the only way it's going to happen, in my opinion, is if we let them do it the way they're doing it. Otherwise, it won't get done. So I'm delighted,” Lummis — who was a member of the far-right, Constitution-wagging Freedom Caucus when she served in the House — told Raw Story. “I mean, really, really delighted with the way that Trump is allowing the DOGE people to audit.”

Team Trump is set on upending, dismantling, overhauling or outright deleting government websites, grants, programs, agencies, protocols and even federal employees themselves.

The courts are now dealing with an onslaught of legal challenges to this new MAGA administration. All those cases will take time to wind through the judiciary, but the Supreme Court’s already spoken.

Last June, the Supreme Court issued new, norm-upending marching orders to Congress when, in a 6-3 ruling, the majority of justices overturned a pivotal, if wonky, 1984 decision when the Roberts Court obliterated the so-called Chevron doctrine, which enabled experts in federal agencies to write rules and regulations never explicitly spelled out by Congress.

That means, Congress’ crutch is gone. It remains unclear if lawmakers will be able to stand on their own and master the jot and tittle of measures they send to the president’s desk.

But for now, at least, Republican majorities on Capitol Hill seem fine outsourcing the legislative branch’s powers to Trump and his White House.

“We're witnessing the collapse of a lot of constitutional boundaries”

In spite of claiming otherwise, DOGE and its unelected leader, Elon Musk, are so opaque, it’s unclear just how their tech is set up. But IT experts say they seem to be operating their own, non-governmental server.

While a case winds through federal courts, Republicans on Capitol Hill are fine with giving Musk, basically, whatever he wants.

“Like, with Musk, I was playing back the tape, you guys were really hard on Hillary for her server,” Raw Story recently pressed House Judiciary Committee Chair Jim Jordan (R-OH). “Is there a double standard here?”

“No, not a double standard. I mean, Hillary Clinton as secretary of state, after the policy decisions that administration made led to — and security decisions that the administration made — led to the deaths of Americans in Benghazi, Libya,” Jordan — the second most senior Republican on the Oversight Committee — told Raw Story. “And then we find out 60,000 emails, and she destroyed, like, 30,000 of them. You gotta be kidding me.”

“So just having the server isn’t the problem?” Raw Story pressed.

“Right. Musk isn't destroying anything,” Jordan said. “He just wants to know where your money’s being spent.”

Democrats agree on one point. They say there’s literally no comparing ‘her emails’ to the work Musk’s conducting in secret.

“No, the two are not comparable, in that Elon is in a class by himself. It's not just the server, but the unfettered power that Trump’s given him,” Rep. Lloyd Doggett (D-TX) told Raw Story. “But I think it's important in talking about him to remember, everything he does is empowered by Trump. Good cop, bad cop.”

To congressional Republicans, Trump and Musk are both playing good cop.

“I'm amazed,” Jordan said. “The Trump administration is up to the most intense and focused start of any administration, certainly in my lifetime. I think the American people appreciate the focused, intense, on-offense type of start to this administration.”

“Are you afraid that Congress could be ceding a little bit of its authority — too much of its authority — to the White House and an unelected official?” Raw Story asked.

“No. I think you have this focused effort by DOGE to identify stupid things that the federal government’s spending money on,” Jordan said. “And I think when the American people see that, they're like, ‘Well, that's ridiculous. Of course, we need to change that.’”

Democrats aren’t surprised by much these days. Still, many are astounded watching GOP leaders on Capitol Hill outsource their legislative responsibilities to officials across the Trump administration set on canceling decade’s worth of congressional work — from bipartisan foreign aid programs to nonpartisan domestic food assistance programs.

“There's a shameful abdication of legislative power and responsibility by the GOP majority to the executive branch and the executive branch's lawless delegate,” Rep. Jamie Raskin (D-MD) — a constitutional scholar by trade — told Raw Story. “We're seeing tremendous erosion of our constitutional edifice.”

Raskin finds the blurred lines between Musk’s work at DOGE and the billions of dollars in federal contracts his companies, like SpaceX, receive beyond troubling.

“We're witnessing the collapse of a lot of constitutional boundaries,” Raskin — the top Democrat on the House Judiciary Committee — said. “You know, we have this extraordinary convergence of governmental power with corporate power to the extent that a major federal contractor collecting billions from the taxpayers is now also a federal government employee purporting to oversee federal spending.”

Unlike Trump’s first administration, today’s Trump-centric GOP is unified at the Capitol, at least when it comes to oversight, which Raskin says isn’t taking place in spite of Republican rhetoric claiming otherwise.

“They keep talking about, you know, what a great job Elon Musk is doing on oversight when we have an Oversight Committee. The Judiciary Committee has an oversight subcommittee. All of Congress is supposed to be doing oversight as a central part of our responsibility,” Raskin said. “And so instead, they want one, you know, unvetted government contractor to be doing oversight over federal contracts. It's ridiculous.”

It’s not just the lack of oversight. Republicans on Capitol Hill are now Musk’s biggest cheerleaders.

“Everybody sorta ran on the same stuff”

Republicans refute claims they’re laying down on the job. Instead, they argue today’s GOP is in lockstep with the Trump White House.

“What do you view as your guy's role in this Congress?” Raw Story asked Rep. Andy Biggs (R-AZ). “Is it oversight of the executive, or is it working in tandem because you all are so aligned?”

“I don't know of anybody here who ran away from the president in their campaign. You know what I mean?” the former Freedom Caucus chair told Raw Story. “So everybody sorta ran on the same stuff that included reducing spending, continuing tax cuts, planning for security, that inflation would be dealt with by reducing spending — you know, the whole thing.”

So, instead of passing new measures to bolster the Trump administration’s prerogatives, Republicans are sitting back and enjoying the rowdy show just down Pennsylvania Avenue.

“We're going to do those mandates. We view it as a voter mandate, which gives us a mandate,” Biggs said. “So we move, we work together.”

Besides made-for-TV flurries of executive action from Trump and Musk, there’s not that much working together going on. As each day passes, the threat of a government shutdown increases ahead of the current funding deadline, March 14.

Instead of conducting formal oversight on the administration — like the GOP conducted at the end of the Obama administration and throughout the Biden administration — many Republicans now say their job is to oversee taxpayer dollars. Thus, Republicans say they’re in lockstep with Trump, Musk and DOGE.

“The oversight role still continues, though,” Biggs said. “It's not a new idea to have an independent third party, you know, looking into something like this, so our oversight is to make sure that we know where the dollars are going, just like we've been trying to do for the last — ever since I got here.”

“Now Democrats, they say you guys are just puppets for Musk and Trump,” Raw Story pressed. “You all see it differently?”

“No, that's not true,” Biggs said. “That's kind of a talking point narrative that they're trying to build on, because they don't have jack squat on policy.”

Republicans remain light on policy themselves. That’s despite the new Supreme Court mandate — when it struck down the ‘Chevron doctrine’ last summer — that Congress get serious about writing legislation instead of leaning on federal agencies to think for Congress.

Don’t tell DOGE…

The day’s quickly approaching when Trump will run out of executive orders to sign, and he’ll need Congress to send him actual bills to sign into law.

Lawmakers are braced. Their jobs — or, at the very least, those of their staff — have already gotten noticeably harder since Chief Justice Roberts and the court’s conservatives upended the precedent set in the 1984 Chevron v. Natural Resources Defense Council decision.

“I haven't thought of it that way. I do think it's put an extra burden on us,” Sen. Lummis — the Wyoming Republican who used to be on the Freedom Caucus — said. “It ramps up our drafting. We're more detailed about our drafting because Chevron.”

It’s not just making drafting legislation more meticulous: it seems to be melding lawmakers from the president’s own party with the very federal agencies lawmakers are supposed to oversee.

“Just more hard work. And it is all specifically geared towards Chevron, but I can't really say that it has affected the relationship between the legislative and executive branch, yet,” Lummis said. “It might, but more the agency level than the White House level. You know, the agencies we work with.”

But soon, the agencies won’t be much assistance as this Congress will be required to stand on its own.

“The Supreme Court said, ‘Hey, you guys gotta do your job,’” Raw Story reminded Rep. Chip Roy (R-TX).

“I think we're early in trying to figure out how to mechanically put all that in place,” Roy told Raw Story at the Capitol. “Like, I think, honestly, a lot of what DOGE is doing and what Elon's doing, we've got to embrace and put in our own orbit in Congress.”

While Musk, Trump and many rank-and-file Republicans are promising some $2 trillion in federal budget cuts, Roy and a handful of other Republicans argue increased funding is needed now to save money in the long run.

Roy argues efforts to cut Congress’ own budget — legislative branch appropriations, to be precise — are misguided, because expertise is needed to upend the administrative state legislatively.

“Guys that are always wanting to slash and burn [legislative] branch approps, I’m like, ‘You got to have your own,’” Roy said. “You’ve got to understand in a post-Chevron world, we got to be able to do our jobs. We need to have, certainly, in some organized fashion — I'm not sure every office has to be beefed up — but our ability to be able to have overview and constraint.”

Roy says that’s where Republicans are rooting for Musk most.

Instead of the time it takes to investigate and then issue a formal report or to “have somebody come testify,” Roy believes the technology-driven Silicon Valley approach will leave a lasting imprint on on not just the executive branch but Congress itself.

“Look, with technology now, I mean, what Elon’s showing — whether you love him or you don’t — the ability to use algorithms and computers and AI to go pore over the government and expose all of the horse crap that we've all been seeing, that we have observed,” Roy said.

“Democrats say you guys are puppets of Musk and Trump,” Raw Story pressed. “But you guys don't see it that way?”

“No — at all, actually,” Roy said. “So far, what I've seen is the president empowering an individual to root through the crap and expose it…and I think this will now empower Congress in the future — both sides of the aisle — to be able to go forward and pore over all of this crap.”

“Because, essentially, when you do spending bills, you'll fill in some of the things that they're currently doing?” Raw Story asked.

“Correct,” Roy said. “But we're going to need to be able to use those same tools and have input and/or build out our own.”

The steady stream of complaints flowing from the left is mere white noise to congressional Republicans these days.

“I think the hyperbole coming from the Democrats is simply because they lost and all of their little pet programs that they've loved for years are going away,” Rep. Byron Donalds (R-FL) told Raw Story. “That is fear-mongering. The same fear-mongering that had them ignore the reality of the southern border, and it is why they lost, not just the Senate, That's why they lost the White House.”

Republicans may have won in November, but Democrats say they’re already squandering their newfound populist appeal at the feet of unelected billionaires, like when Musk backed a government shutdown during Congress’ last funding fight in December.

“They have a chance to succeed on, like, big issues that they ran on, but if they're gonna do this nonsense, it'll all fall down on them,” Rep. Eric Swalwell (D-CA) told Raw Story earlier this winter after Democrats came to Republicans’ rescue and funded the government.

POT HED: MAGA Effect: “It's a different party, in so many ways”

The MAGA-mandate may be nebulous, but to card-carrying club members, part of their job is to dismantle American conservatism — or what became of it in recent neocon saturated decades — itself.

“Is part of the mandate also to upend the Republican Party of old?” Raw Story asked the House Judiciary chair.

“It just happens. It's a different party in so many ways,” Jordan told Raw Story. "Someone said this a few years ago, you know, 'We're no longer the wine and cheese party. We're a beer and blue jeans party.' And so we're much more, I think, a working-class, middle-class-focused party."

“I always say, we make the job too complicated. Job's pretty simple. We just tell the voters what you were gonna do when you ran for it. If you get elected, go do what you said. President Trump does that better than anyone,” Jordan said. “But when you have someone whose, like, singular purpose and focus is to identify that and say, ‘We need to stop this’ — that's a good thing.”

Democrats are still regrouping after their party’s stunning defeat in November, but they see one sliver of an opening — one many predict will only grow in the coming months — as they watch this, supposedly, populist president pal around with billionaires.

“He's good at taking care of people who can afford to join Mar-a-Lago, so that's, like, his crowd, whether it be a tax bill or whether it be for who he's bringing in the administration,” Rep. Mark Pocan (D-WI) told Raw Story. “It's just very different than what we've been used to, where you bring in experts in areas. Instead, he just brings in fellow rich people.”

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an 8 24

Since becoming the 2024 Democratic presidential nominee, Vice President Kamala Harris has faced pressure to unveil a comprehensive policy agenda. But one recent Supreme Court (SCOTUS) decision could complicate her efforts to implement any robust policies even if she becomes the 47th president of the United States.

According to the New Republic's Jason Linkins, there's "a dark shadow that hangs over everything" as Harris rolls out her policy proposals: The 2024 *Loper Bright Enterprises v. Raimondo* decision. In the landmark decision announced in late June toward the very end of SCOTUS' most recent term, the Court's six conservatives notably threw out 40 years of precedent known as the "Chevron deference."

Linkins argued that decision "puts the future of any policy that Harris favors in grave doubt," adding that Loper Bright gives "six unelected right-wing politicians who all enjoy a lifetime appointment a line-item veto over anything a Democratic Congress — and by extension Harris — wants to do, unless they can muster the votes to confront each problem they want to solve with an inhuman amount of hyper-specificity."

READ MORE:**SCOTUS limits government agencies in bombshell decision with sweeping implications**

"If you want the Harris campaign to get more detailed on policy, I’m sorry to say that any conversation starts and ends with how they plan to confront a Supreme Court that has torched the separation of powers in themad game of Calvinball they kicked off during the Trump era," Linkins wrote.

Prior to Loper Bright Enterprises v. Raimondo, the matter of how to interpret the application of federal regulations was at the discretion of the various government agencies tasked with regulating certain industries. This was made official by the 1984 *Chevron v. Natural Resources Defense Council* case, which was a 6-3 decision ruling that the judiciary "must give effect to the unambiguously expressed intent of Congress" in matters concerning the practical application of federal statutes.

But after this term, the power previously vested in federal agencies to interpret statutes regarding the regulation of the private sector now lies with the courts themselves. Justice Neil Gorsuch (appointed by former President Donald Trump) illustrated judges' lack of practical knowledge in his concurring opinion in the *Ohio v. Environmental Protection Agency* ruling issued just a day prior to Loper Bright. Gorsuch erroneously referred to the pollutant nitrogen oxide as "nitrous oxide," which is the laughing gas used by dentists.

In his article, Linkins made the case that SCOTUS "really is the most critical policy issue in this election." He cited the Supreme Court's July *Trump v. United States* case — in which the Court's conservatives agreed that presidents should have absolute broad immunity from criminal prosecution for anything deemed an "official act" — as an example of the nation's highest court now essentially acting as a "super-legislature in black robes."

READ MORE:**SCOTUS 'staged a coup' and will resemble Russian courts if Trump wins: conservative expert**

"[E]ven if they blow the GOP out of the water electorally, the end of Chevron deference is a fail-safe against Democratic policy, constantly running in the background as long as five of the six conservatives on the Roberts court agree. In this way, Harris and her fellow Democrats are locked out of liberal governance," he wrote. "Since liberal governance will form the cornerstone of anything Harris and Democrats want to do during her time in office, a confrontation with a Supreme Court that’s holding the policymaking apparatus hostage is not a fight they can duck."

Linkins contended that Democrats need to make the case to voters that "the Roberts court is the primary antagonist to making things better, easier, safer, and fairer for ordinary Americans," calling SCOTUS conservatives "despoilers of the land and pilferers of our wealth." And he noted that it may be "time to revisit court-packing."

"Anything you might want an ascendant Democratic administration to do faces the judicial veto of right-wingers who can’t be voted out of office," he wrote. "[W]hether you’re a progressive fan of Medicare for All, or a centrist dedicated to means-tested, watered-down bulls—, you’re all in the same boat, so grab an oar."

Click here to read Linkins' full article in the New Republic.

READ MORE:['Loss of trust': Growing chorus of federal judges speak out against 'out of step' SCOTUS

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https://hartmannreport.com/p/demolishing-chevron-deference-republicans-9b4

n 1904, O. Henry coined the phrase “banana republic” to describe a country where the government supports big business for the exclusive benefit of the morbidly rich. A government of, by, and for what that generation called the “fatcats” or the “robber barons.”

The banana republic-ication of America just kicked into high gear, and, curiously, there’s been a virtual mainstream media blackout about it.

Here’s how it’s happening.

When Steve Bannon was in the Trump White House, he declared one of their goals was to “deconstruct the administrative state.” That same type of language also appears in Project 2025.

Now, fewer than two weeks ago, the six Republicans on the Supreme Court began that process by kneecapping the ability of regulatory agencies to protect the American people from out-of-control polluters, rip-off banks and insurance companies, Big Pharma, and hundreds of other industries and massive corporations that put profits above humans.

They did it by blowing up the Chevron Deference. It’s part of their long-term commitment to turning America into a billionaire- and corporate-run banana republic with an autocrat as president.

The case ofLoper Bright Enterprises v. Raimondoends the power of most regulatory agencies that are so hated by America’s most exploitative industries and the rightwing billionaires they’ve made.

As Senators Whitehouse, Hirono, Feinstein, and Warren noted:

“This case is the product of a decades-long effort by pro-corporate interests to eviscerate the federal government's regulatory apparatus, to the detriment of the American people.”

So, how did the Supreme Court put the EPA and other regulatory agencies functionally out of business?

It has to do with something called the Chevron deference, a policy established by the Court decades ago to protect just such agencies.

Here’s how regulatory law — using the example of the EPA — issupposedto work (in super-simplified form):

1. Congress passes a law that says, for example, that the Environmental Protection Agency should limit the damage that pollutants in the environment cause to the planet. Congress (the Constitution’s Article I branch of government) defines the broad goal of the legislation, but the Executive Branch (Article II, which encompasses the EPA and other regulatory agencies) has the responsibility to carry it out.

2. The EPA, part of that Executive Branch and answering both to the law and the President, then convenes panels of experts. They spend a year or more doing an exhaustive, deep dive into the science, coming up with dozens or even hundreds of suggestions to limit airborne pollutants, ranging from rules on how much emission cars can expel to drilling and refining processes that may leak or pour poisons into our atmosphere, waters, etc.

3. The experts’ suggestions are then run past a panel of rule-making bureaucrats and hired-gun rule-making experts for the EPA to decide what the standards should be. They take into consideration the current abilities of industry and the costs versus the benefits of various rules, among other things.

  1. After they’ve come up with those tentative regulations, they submit them for public review and hearings. When that process is done and a consensus is achieved, they make them into official EPA rules, publish them, enforce them, and the deadly emissions begin to drop.

This is how it worked, for example, with regard to CO2 until June of last year, a process that simply comports with common sense, as the Supreme Court ruled in 1984 when they established theChevron deferenceto legitimize and defend our regulatory agencies.

Functionally, this process dates back to 1887, when Congress established America’s first regulatory agency — the Interstate Commerce Commission — to prevent railroads from ripping off shippers and passengers.

It was nailed into law and doctrine with the Chevron deference, articulated by the Supreme Court in 1984, reflecting a century-and-a-half of the will of Congress and presidents of both parties who signed regulatory agencies into existence. It says that once a regulatory agency does its due diligence and determines reasonable rules for a substance or behavior, they then have the legal authority to regulate and the courts should “defer” to the agency (thus the “deference” in the doctrine that emerged from the ruling when Chevron tried to negate an EPA ruling in 1984).

Congress passes laws that empower regulatory agencies to solve problems, the agencies figure out how to do that and put the rules into place, and the solutions get enforced by the agencies. And when somebody sues to overturn the rules, if the courts determine they were arrived at through a reasonable process without corruption, those rules stand.

Then came a group of rightwing Supreme Court justices — including Neil Gorsuch (the son of Reagan’s EPA Administrator, Anne Gorsuch, who resigned in disgrace after trying to destroy the agency — who overturned rules made by the EPA about CO2 emissions from power plants in their June, 2022 West Virginia v EPA decision, taking the first big bite out of the Chevron deference.

Their rationale was that because the legislation that created the EPA doesn’t specifically mention “regulating CO2” but instead let the EPA itself determine what pollutants are dangerous to America and the planet, the agency lacks that power to regulate CO2. And now it has lost that power, the result of thatWest Virginia v EPAdecision two years ago.

The coal, oil, and natural gas industries have been popping champagne corks for two years now, as CO2 levels continue to increase along with the temperature of our planet and the violence of our weather.

In addition to Gorsuch, the Court’s decision-makers inWest Virginia v EPAincluded Amy Coney Barrett whose father was a lawyer for Shell Oil for decades, and John Roberts, Samuel Alito, and Brett Kavanaugh who are all on the Court in part because of support from a network funded by fossil fuel billionaires and their industry (among others) that brought that case and then brought this year’sLoper v Raimondo.

And, of course, there’s Clarence “on the take” Thomas, who supported the Chevron deference 15 years ago but, since being wined and dined by rightwing billionaires, in 2020 wrote:

“Chevron compels judges to abdicate the judicial power without constitutional sanction. … Chevron also gives federal agencies unconstitutional power.”

Giving us a clue to how this went down, all six Republicans on the Court voted to gut the EPA’s ability to regulate CO2 inWest Virginia; all 3 Democratic appointees opposed the decision.

Justice Elena Kagan wrote that the Court:

“[D]oes not have a clue about how to address climate change...yet it appoints itself, instead of congress or the expert agency...the decision-maker on climate policy. I cannot think of many things more frightening.”

Their ruling was, essentially, that all of that research into the specifics of anticipated regulations — all those hundreds of scientists, millions of public comments, and hundreds of thousands of science-hours invested in understanding problems and coming up with workable solutions — must now be done by Congress and the courts rather than administrative regulatory agencies.

As if Congress and the courts had the time and staff.

As if they was stocked with scientific experts, a much larger budget, and had millions of hours a year for hearings.

As if Republicans in the pockets of fossil fuel billionaires wouldn’t block any congressional action — or those billionaires wouldn’t lavish more gifts on Thomas, Roberts, Alito, Gorsuch, Barrett, and Kavanaugh even if it did.

Republicans on the Supreme Court succeeded in dancing to the tune of the billionaire’s fossil fuel network in the West Virginia v EPAcase, but it was narrowly focused on CO2.

In theLoper v Raimondocase, however, the Court explicitly expanded that victory by blowing the entireChevron deferenceout of the water, thus ending or severely limiting most protective government regulations in America and opening the door to court challenges to every decision by every regulatory agency established since the last decades of the 19th century.

They’re saying, essentially, that the EPA (and any other regulatory agency) can’t do all the steps listed above: instead, that detailed and time-consuming analysis of a problem, developing specific solutions, and writing specific rules has to be done, they say, by Congress or the courts themselves.

A Congress where arcane rules and gerrymandering have given Republicans the ability to block pretty much any legislation their billionaire patrons pay them to block. And courts filled with lawyers who never set foot in a science classroom.

So now, starting just hours after theLoper Brightruling, those industries and companies that have chafed under rules and regulations protecting us are on the march. They hope to rule the new banana republic the GOP envisions for us.

So far in the past two weeks, federal courts have stripped over 4 million Texas workers (and soon to be all Americans) of Department of Labor rules requiring overtime payments. It happened hours after the SCOTUS ruling, specifically referencing that ruling.

In Kansas on July 2nd, a federal judge ruled that Title IX “gender identity” non-discrimination protections promulgated by the Department of Education no longer apply to queer students, with the judge specifically citing and quoting Loper Bright:

“The Supreme Court recently held that [this] court ‘need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.’ Loper Bright Enter. v. Raimondo. [This] court must exercise its ‘independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires.’”

It’s been fewer than two weeks since the Court accomplished what Trump andProject 2025publicly aspired to, but the floodgates have opened.

Dozens of other challenges to protective regulations are already in the works, including, but not limited to:

“[R]egulation by the Food and Drug Administration (FDA), healthcare and product reimbursement, white collar enforcement and investigations, intellectual property, Federal Trade Commission and antitrust enforcement, international trade and national security regulation, public company disclosures, environmental regulation, government contracting, business transactions, and litigation….”

Thousands more will soon clog the federal courts (including the legal status of mifepristone and birth control). The six Republicans on the Supreme Court have unleashed a legal tsunami that, if not reversed by Congress or through expanding the Court, threatens to take Americans back to 1876, when morbidly rich robber barons, landlords, and employers could rip off and poison Americans with impunity.

It’s past time to stand up and speak out, and Dick Durbin’s Senate Judiciary Committee is the logical place to start with subpoeas to bare this Court’s naked corruption. If you agree, you can find Durbin’s phone numbers and addresses here and a list of the Committee’s members here.

And, of course, we must vote a straight Democratic ticket this November.

Every day that goes by without these corrupt judges being held to account by the Senate is another day closer to the end of the functional “government of the people, by the people, [and] for the people,” and our final transition into a genuine, and perhaps irreversible, banana republic.

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OSHA clarence an 7 24 ah

Inside Clarence Thomas’ new legal target: 'It’s unconstitutional' - Alternet.org

When the U.S. Supreme Court handed down its controversial ruling in Loper Bright Enterprises v. Raimondo on June 28, it overturned a decision that had been the law of the land for 40 years: Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.

That landmark 1984 decision established what was known as "Chevron deference," which said that judges and courts should defer to the expertise of officials at federal regulatory agencies. Critics of the June 28 ruling argue that it seriously undermines the ability of government agencies to regulate everything from clean water and air quality to health care.

According to Business Insider, one agency that Justice Clarence Thomas is hoping to see abolished is the Occupational Safety and Health Administration (OSHA).

READ MORE: **SCOTUS limits government agencies in bombshell decision with sweeping implications**

Business Insider's Grace Eliza Goodwin reports, "The Supreme Court, on Tuesday, (July 2), announced which cases it would consider next and which it wouldn't. Among those the Court rejected was a case that challenged the authority of OSHA, which sets and enforces standards for health and safety in the workplace. And Thomas, widely considered to be the most conservative justice on the already-mostly conservative Court, wasn't happy."

Goodwin adds, "In a dissent, he explained why he believed the High Court should've taken the case: OSHA's power, he argues, is unconstitutional."

Thomas wrote, "Congress purported to empower an administrative agency to impose whatever workplace-safety standards it deems 'appropriate.' That power extends to virtually every business in the United States."

Goodwin notes that the 6th Circuit Court of Appeals "upheld OSHA's constitutionality" in 2023.

READ MORE:[Conservative warns Dems to get it together and confront Trump's 'true menace'

*Business Insider's full report is available at this link.

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mma Project 2025 partners join right-wing media and climate deniers to celebrate SCOTUS decision overturning Chevron deference

06/28/24

On June 28, the Supreme Court upended 40 years of precedent by overturning Chevron deference, a decision that will restrict federal agencies' regulatory abilities that will also make it easier for corporations to challenge environmental protections, climate action, and rules that protect workers and regulate drugs and financial practices, among other issues.

Undoing Chevron deference has been a central goal of the conservative legal movement and corporate lobbyists for decades, with right-wing think tank the Heritage Foundation arguing that “the modern administrative state creates a pervasive system of consolidated power that weakens the checks and balances carefully constructed by the United States Constitution.”

Now, Heritage has joined with over 100 other conservative organizations to organize Project 2025, a comprehensive transition plan to guide the next GOP presidential administration with policy proposals and staffing recommendations. In response to the Supreme Court ruling finally overturning Chevron deference, multiple Project 2025 partners joined right-wing media figures and climate deniers in celebrating the decision.

What is Chevron deference and why overturning it matters

Project 2025 partners celebrate court’s decision to overturn Chevron and the demise of the “administrative state”

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CU & CUF Join AAF Amicus Brief In KC Transport v. Secretary of Labor (Chevron Deference)

Posted by Citizens United Foundation

note does not say w/ who

Citizens United and Citizens United Foundation joined an amicus brief with over 20 other amici in KC Transport v. Secretary of Labor, a case in which Mine Safety and Health Administration (MSHA) claimed that KC Transport, a trucking company, is a mine because its trucks sometimes transport coal. Citizens United and Citizens United Foundation argue per the amicus brief that the Constitution does not permit the ever-expanding executive branch to usurp the constitutional prerogatives of the legislative and judicial branches. The Court should grant certiorari in this case, restrain unaccountable bureaucrats, and return the federal government to the its proper constitutional balance of powers.

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trump

on March 22, 2024

The process is the punishment: Joe Biden has weaponized the justice system to bankrupt, imprison, and destroy his political opponents. Just one problem: Every single act Jack Smith has taken since Day 1 has been ultra vires and void because the Attorney General lacks the authority to hire a private citizen off the street and empower him with the overwhelming authority of a United States Attorney.

Citizens United Foundation agrees with former Supreme Court Justice and U.S. Attorney General Robert Jackson:

“The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. Or the prosecutor may choose a more subtle course and simply have a citizen’s friends interviewed.

Because of this immense power to strike at citizens, not with mere individual strength, but with all the force of government itself, the post of Federal District Attorney from the very beginning has been safeguarded by presidential appointment, requiring confirmation of the Senate of the United States. You are thus required to win an expression of confidence in your character by both the legislative and the executive branches of the government before assuming the responsibilities of a federal prosecutor.“

It strains credibility to believe that Congress would vest the ability to confer unilaterally such extraordinary power sub silentio upon Attorney General Merrick Garland. In fact, it has not. Congress has not created “by law” Jack Smith’s Office of Special Counsel. Even if the Court somehow concludes that the office exists in accordance with the Constitution and federal statute, hiring a private citizen like Jack Smith off the street to wield the power of a superior constitutional officer violates Art. II, Sec. II, Cl. II.

The Senate must give its consent. Joe Biden’s imperial presidency must be reined in.

This is the fundamental question that the Court must address before reaching the immunity question.

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AN AH 1 24 HEARING CASE TODAY 1/17/24

When former Rep. Anne Gorsuch Burford (R-Colorado) — the late mother of U.S. Supreme Court Justice Neil Gorsuch — was heading the Environmental Protection Agency (EPA) in the early 1980s under President Ronald Reagan, she drew a great deal of criticism from environmentalists and some Democrats in Congress for weakening air and water regulations.

Burford ended up resigning, much to the disappointment of her son (who was in his teens at the time).

In an article published by CNN on January 17, Supreme Court analyst Joan Biskupic stresses that Justice Gorsuch has followed in his mother's footsteps with "his own brand of defiance and anti-regulatory fervor."

"In recent years," Biskupic explains, "Justice Gorsuch has voted against regulations that protect the environment, student-debt forgiveness and COVID-19 precautions. During a COVID-19 spike in early 2022, Gorsuch was the lone justice who declined to wear a mask while sitting on the bench. He has led calls on the Court for reversal of a 1984 Supreme Court decision that gives federal agencies considerable regulatory latitude and that, coincidentally, traces to his mother's tenure."

On January 17, according to Biskupic, the High Court is scheduled to hear arguments in cases testing the Reagan-era 1984 ruling in Chevron USA, Inc. v. Natural Resources Defense Council.

"The issue comes down to Congress' ability to write open-ended laws that delegate policy details to agency officials," the CNN journalist notes. "The Chevron principle dictates that when disputes arise over regulation of an ambiguous law, judges should defer to agency interpretations of the law if the interpretations are reasonable. The Chevron case has steered disputes over countless directives intended to protect the public, such as from air pollution, workplace hazards, risky drugs and medical fraud, or to guarantee certain benefits, such as people with disabilities and elderly."

U.S. Solicitor General Elizabeth Prelogar, according to Biskupic, will defend that 1984 ruling.

READ MORE:Neil Gorsuch called on to recuse from case that would benefit oil baron pal

Prelogar, in a filing, told the Roberts Court, "Overruling Chevron would be a convulsive shock to the legal system. All three branches of government, regulated parties, and the public have arranged their affairs for decades with Chevron as the backdrop against which Congress legislates, agencies issue rules and orders, and courts resolve disputes about those agency actions."

READ MORE:Trump SCOTUS justice once argued states can disqualify 'constitutionally prohibited' candidates

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new 10 23 email

no lnx

‘Get the Right Cases to the Supreme Court’: Inside Charles Koch’s Network

Billionaire’s web of rightwing groups works to bring cases to court that could undermine core functionings of the US government

ED PILKINGTON AND NICK SURGEY

OCT 26

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This article was produced in partnership with The Guardian

The Koch network, a web of rightwing groups cultivated by billionaire businessman Charles Koch and his late brother David Koch, is spearheading the attack on federal agencies and government regulations that dominates the US supreme court agenda this term.

The network has been working behind the scenes to bring cases before the court that, if successful, could undermine many of the core functionings of the US government. At least two of the biggest cases to be considered by the justices this term have been spurred by groups bankrolled and coordinated within the Koch universe.

Footage of an internal panel discussion between senior operatives from Koch entities held in the summer of 2022 reveals that the network has been quietly planning the current assault on the “administrative state”. The groups are seeking to exploit the supreme court’s new six-to-three rightwing majority secured by Donald Trump to dismantle vital executive powers.

Regulatory controls in their sights include environmental standards to combat pollution and the climate crisis, consumer protections against predatory lenders, and safeguards for workers’ rights. At stake is what the Strict Scrutiny podcast has called “the future of government as we know it”.

The footage, which is made public here for the first time, was obtained by the investigative watchdog Documented and shared with the Guardian. During the 37-minute panel discussion, legal strategists with several Koch-related groups expressed excitement that the new hard-right supreme court supermajority has created the potential for a concerted attack on the functions of federal agencies.

Jorge Lima, an economic policy strategist at the Koch network’s central coordinating group, Stand Together, said that the new composition of the court amounted to a huge “landscape opportunity, particularly on the administrative state. We’re doubling down on this strategy.”

Lima added: “Every dog has its day, and it’s a big day for the administrative state.”

Casey Mattox, a legal strategist at the main Koch advocacy group, Americans for Prosperity, argued that the supreme court was now “primed for a real change in the law” on federal regulations which he said amounted to a “paradigm shift”. Mattox said: “That’s why we are partnering with organizations that can get the right cases to the supreme court.”

The effort appears to have born fruit. Two of the most significant cases before the court in the 2023-24 term, brought with the backing of Koch-linked organizations, attempt to rein back the government’s power to impose regulations on corporations.

The prominence of the cases underlines how the libertarian empire created by the Kochs is still a force to be reckoned with within US politics. Since David Koch’s death in 2019, and the Koch network’s decision to come out in opposition to Trump ahead of next year’s presidential election, the network has receded from public attention.

But the scope of Charles Koch’s reach remains formidable, as was demonstrated earlier this month when the 87-year-old told Forbes that he had given $4.3bn of his Koch Industries stock to Believe in People, a newly-created group named after his book of the same title. He has transferred a further $975m to another new entity, CCKc4, which carries the initials of his son Chase Koch.

The massive combined $5.3bn in donations, one of the largest acts of giving to non-profits in US history, will ensure that the Koch influence will continue to push the US to the right for years to come. Undermining government regulations is central to those ambitions.

Lisa Graves, the executive director of the progressive watchdog True North Research who is a long-time Koch watcher, said that Charles Koch has shown a “fundamental hostility to government regulation” since his early political writings in the 1960s. “This is the through-line of his career. His business operations have a substantial self-interest in assailing regulations that impede his profits.”

Koch Industries is a conglomerate of energy and chemicals companies that stand to benefit if controls on pollution, workers’ rights and other aspects of public governance are rolled back. The firm is the second largest privately-owned company in the US.

Among the big administrative state cases that the justices will be considering this term is Loper Bright Enterprises v Raimondo, which seeks to overturn a 40-year precedent set by the supreme court itself. Known as Chevron, the ruling allows federal agencies the flexibility to reasonably interpret laws without interference from the courts as they regulate critical parts of public life, such as the environment and public safety.

Experts have warned that if Chevron is struck down, it could be a recipe for legal and administrative chaos. “We are talking about rules that protect us in so many ways – truckers who are too tired to drive on the highway, unsafe workplaces, and pollution of our water and the air we breathe,” Graves said.

The case was nominally brought by a New Jersey herring fishing company that objected to being charged by a federal agency that monitors its catch to prevent over-fishing. Behind the challenge is a conservative group called Cause of Action, which is intricately tied to the Koch network.

The chair of Cause of Action’s board, Brian Menckes, is general counsel of the Charles Koch Foundation. Cause of Action’s executive director, James Valvo, who is acting as one of the fishing company’s lawyers in the case, is the former head of policy of Americans for Prosperity.

A second lawyer representing the company, Eric Bolinder, holds dual roles as a counsel for Cause of Action and Americans for Prosperity.

In 2021 Cause of Action’s entire income of $375,000 came from Stand Together, the Koch network’s coordinating group, Bloomberg reported. The groups are also physically close: Cause of Action and Americans for Prosperity not only share the same address in Arlington, Virginia, they occupy the same office – suite 700.

Bolinder was one of the panel speakers at the 2022 Koch discussion on the administrative state. He framed the plan to use the supreme court to launch a legal attack on regulatory government as a states’ rights issue.

“As the federal government grabs more and more power, particularly to the regulatory state, the states become less and less important,” he said.

The Guardian contacted Stand Together and Cause of Action for comment. Cause of Action did not immediately reply.

Gretchen Reiter, Stand Together spokesman, said that the Loper Bright case was seeking “to restore one of the core tenets of our democracy: that Congress, not the administrative agency, makes the laws. Cause of Action Institute – which filed the lawsuit in 2020 – is representing family-run fishing companies that the federal government is forcing to pay a tax that Congress never authorized, and that violates our constitution’s separation of powers.”

Last week, the supreme court accepted a second case also challenging the Chevron precedent, which has now been consolidated with the fishermen’s petition. Relentless v Department of Commerce was also filed by a group with intimate connections to the Koch network, the New Civil Liberties Alliance (NCLA).

The organization, which claims to “protect constitutional freedoms from violations by the administrative state”, was founded in 2017 with seed money from the Charles Koch Foundation. Over five years, it has received more than $5m from the Koch network.

NCLA’s president, Mark Chenoweth, previously served as in-house counsel for Koch Industries.

NCLA submitted an amicus brief last week supporting another major challenge to regulatory agencies that will be heard by the supreme court this term. Securities and Exchange Commission (SEC) v Jarkesy threatens to gut the enforcement power of the SEC by curtailing its ability to fast-track cases of securities fraud through its own in-house administrative law judges.

A ruling against the SEC could drastically reduce the ability of numerous government agencies to enforce environmental and other standards.

The footage of the Koch panel discussion obtained by Documented reveals that the NCLA has been secretly lobbying for the Jarkesy case to reach the supreme court. Mattox said that “NCLA brought a lot of value to that case”.

He went on: “You won’t see them actually directly litigating on that case, but they’ve done a lot of work behind the scenes, and that speaks to the way that our community adds value here, because when we partner with people we look for results, not necessarily for headlines and attention-grabbing.”

There is a further twist to the issue of Koch influence on the supreme court’s docket this term. Last month, ProPublica revealed as part of its expose of ethical breaches by some justices, that the right-leaning Clarence Thomas had attended at least two Koch donor events where funds were raised to forward the Koch network’s mission – which includes bringing cases before the court.

The attack on the administrative state is central to the work of Americans for Prosperity, which boasts of its years-long campaign to challenge what it calls the “out-of-control regulatory environment imposed by Washington”. It organizes bus tours around the country, directly relating “red tape” on energy infrastructure projects to the high cost of fuel at the pump.

This has taken place while oil and gas giants such as Exxon, BP and Shell have posted record profits, and the world has increasingly felt the impact of climate change. Americans for Prosperity calls itself “the nation’s premier grassroots organization”, but according to an independent audit report from 2021, 94% of the $112m in cash it received that year came from just two donors.

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BS

fIRST ON THE DAILY SIGNAL—A conservative nonprofit launched by former Vice President Mike Pence

is representing 11 conservative groups in supporting fishermen challenging the extensive power of the federal bureaucracy.

NOTE NOT LIST ANYWHERE EVEN AMICUS?

Advancing American Freedom, which plays no role in Pence’s 2024 presidential campaign, filed an amicus brief in the Supreme Court case Loper Bright Enterprises v. Raimondo, in which the court will revisit the longstanding precedent ofChevron deference. The group exclusively gave The Daily Signal a copy of the brief.

In Chevron v. National Resources Defense Council (1984), the Supreme Court held that whenever a law is ambiguous, a federal agency has the authority to interpret the scope and content of that ambiguity to achieve its ends, so long as the interpretation is “reasonable.”

This precedent granted executive agencies tremendous power to effectively rewrite the law, critics like Advancing American Freedom claim.

“The Left has used Chevron Deference to grow the administrative state and circumvent the approval of Congress to push their own agenda,” J. Marc Wheat, Advancing American Freedom’s general counsel, told The Daily Signal. “This is never what the Founders intended; unelected bureaucrats at various agencies do not have the power to legislate and we hope that the Supreme Court checks the Chevron Deference once and for all.”

In Loper Bright, fishermen are challenging the National Marine Fisheries Service—represented by Commerce Secretary Gina Raimondo. Federal law forces fishermen to carry inspectors aboard their vessels. A new Fisheries Service rule forces the fishermen to pay the salaries of these federal inspectors. The federal law requiring the inspections does not stipulate that fishermen must pay inspectors’ salaries, but the Fisheries Service insists that it has the power to demand payment under Chevron.

A divided panel of the U.S. Court of Appeals for the District of Columbia Circuit sided with the Fisheries Service in August 2022, noting that the statute leaves “room for agency discretion.” Yet Judge Justin Walker dissented.

“Did Congress authorize the National Marine Fisheries Service to make herring fishermen in the Atlantic pay the wages of federal monitors who inspect them at sea?” he asks in his dissent. “Congress unambiguously did not.”

“Fishing is a hard way to earn a living,” he notes. While “Congress can make profitable fishing even harder by forcing fishermen to spend a fifth of their revenue on the wages of federal monitors embedded by regulation onto their ships,” it has not done so. “Until Congress does that, the Fisheries Service cannot.”

Advancing American Freedom filed the amicus brief on Monday, representing itself and ten other conservative organizations. Eagle Forum, the National Center for Public Policy Research, Project 21 Black Leadership Network, Students for Life of America, and Young America’s Foundation joined the brief.

The brief begins by quoting the Declaration of Independence, noting that the Founders faulted King George IIIfor erecting “New Offices… to harass” them “and eat out their substance.”

“Here, a New England fishing business is threatened with insolvency because a Federal agency seeks to swarm the industry with bureaucrats to consume the proceeds of some20% of the daily catch,” the petitioners write. “Bureaucracies that have grown smug and fat through Chevron deference should reacquaint themselves with their country’s history.”

“This case presents the question of Chevron deference dead on without any need to tack, offering an excellent opportunity to abandon this sinking ship and to offer lower courts a more seaworthy vessel for judicial review,” the petitioners write.

Conservative Supreme Court justices have criticized Chevron deference in recent years. Justice Clarence Thomas wrote in his concurrence in Michigan v. EPA (2015) that Chevron “wrests from Courts the ultimate interpretative authority ‘to say what the law is,’ and hands it over to” the executive branch. Justice Neil Gorsuchwrote last fall that the court should acknowledge “that Chevron did not undo, and could not have undone, the judicial duty to provide an independent judgment of the law’s meaning.”

Federal agencies have used Chevron deference to justify many controversial policies.

When the Supreme Court overturned Roe v. Wade last year, President Joe Biden directed his administration to “protect and expand access to abortion care.” Following the prompting of Health and Human Services Secretary Xavier Becerra, the Centers for Medicare and Medicaid Services issued guidance claiming to find an abortion mandate in a law that had never been interpreted as mandating abortion.

The federal agency interpreted the Emergency Medical Treatment and Labor Act, which requires health care providers to provide “stabilizing treatment” in certain circumstances, as mandating abortion. If a health care provider determines that abortion is necessary to protect the mother’s life, he or she must either perform the abortion or refer the woman to a medical facility that would perform it, regardless of the relevant state law.

Advancing American Freedom, representing 25 other conservative and pro-life groups, filed an amicus brief challenging this interpretation of the law. The brief argues that this interpretation “would expand the meaning of the 1986 statute to include abortions as a form of treatment and would illegally overwrite legitimate state laws designed to protect women and the unborn.”

As in Loper Bright, Advancing American Freedom urges the Supreme Court to overturn Chevron.

The Daily Signal depends on the support of readers like you. Donate now

Portrait of Tyler O'Neil

@Tyler2ONeil

Tyler O'Neil is managing editor of The Daily Signal and the author of "Making Hate Pay: The Corruption of the Southern Poverty Law Center."

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https://www:{.dailysignal.:(style="background-color:#ffff66;"):}:com/2023/07/27/tyranny-bureaucracy-ted-cruz-takes-aim-supreme-court-doctrine-undermining-constitution/

tyler durndl

sen. Ted Cruz took aim Thursday at a Supreme Court precedent that empowers the administrative state at the expense of the people’s will and the Framers’ vision in the Constitution.

This Supreme Court doctrine has “played an enormous role in the expansion of the administrative state,” Cruz, a Texas Republican, told The Daily Signal in a phone interview Thursday. “It has resulted in the American people being subject to thetyranny of the bureaucracy, over which they have very little control or ability to demand accountability.”

Cruz referred to “Chevron deference,” the doctrine that whenever a law is ambiguous, a federal agency has the authority to interpret the scope and content of that ambiguity to achieve its ends, so long as the interpretation is “reasonable.” The doctrine dates back to the 1984 case Chevron v. National Resources Defense Council. Cruz led a group of 35 senators and representatives in supporting fishermen challenging a federal regulation in the upcoming Supreme Court case Loper Bright Enterprises v. Raimondo—a case in which the court will reconsider Chevron deference.

Under this doctrine, “the courts give an extraordinary amount of deference to agency interpretations of law, even when those agency interpretations are not mandated by the statue that Congress passed and the president signed,” Cruz explained.

The senator argued that Chevron deference insulates bureaucrats who make the rules and regulations Americans must live by — creating a perverse protection for people who make life worse for everyday citizens.

“Far too many of the bureaucrats, quite frankly, don’t give a damn about what the voters think,” Cruz said.“One of the reasons why you see so many policies that destroy jobs, that hurt people across the country coming from the unelected bureaucracy is precisely because elected officials don’t have to pay the price for those decisions.”

This protects elected officials because they can merely blame bureaucrats.

“Your jobs that these bureaucrats took away, gosh, don’t blame me because I’m not the one who did that,” Cruz said, paraphrasing an unscrupulous politician. “The framers rightly envisioned a constitutional structure where those creating legislative rules could be held to account by the voters.”

Cruz filed a AMICUS? brief arguing that Chevron deference undermines all three branches of government as laid out in Articles I, II, and III in the Constitution.

Chevron deference undermines Congress’ legislative power by allowing agencies to make their own rules and it undermines judicial review by weakening the courts’ ability to enforce the law.

Cruz told The Daily Signal that it undermines the presidential power to execute the laws as stipulated in Article II, as well.

“The president is a constitutional officer who is democratically accountable,” he noted. “Chevron has helped fuel the growth of the modern administrative state, and in many instances, the unelected bureaucrats are not only unresponsive to Congress, but they are unresponsive to the elected president and the political leadership.”

“We see frequently a disconnect between the bureaucracy that views itself as the permanent government and the elected leadership in Article II,” he noted, referring to what former President Donald Trump called “the Deep State.”

“The president should be able to execute the laws consistent with his or her policy priorities and not handcuffed by unelected bureaucrats who believe they don’t work for the president and they don’t work for anybody else, either,” Cruz argued.

The senator claimed that Loper Bright “provides an excellent vehicle to overturn Chevron.”

In Loper Bright, fishermen are challenging the National Marine Fisheries Service—represented by Commerce Secretary Gina Raimondo. Federal law forces fishermen to carry inspectors aboard their vessels. A new Fisheries Service rule forces the fishermen to pay the salaries of these federal inspectors. The federal law requiring the inspections does not stipulate that fishermen must pay inspectors’ salaries, but the Fisheries Service insists that it has the power to demand payment under Chevron.

A divided panel of the U.S. Court of Appeals for the District of Columbia Circuit sided with the Fisheries Service in August 2022, noting that the statute leaves “room for agency discretion.” Yet the Supreme Court granted a writ of certiorari.

“Here the federal government enforced regulations requiring a family fishing company not only to allow a fishing monitor on their ship but also forcing them to pay the salary of that monitor,” Cruz explained. “Those facts illustrate well how bureaucrats easily stray and routinely stray from the language and the actual policies enacted by Congress.”

“They almost always stray in a direction of increasing the burdens on the American people, making regulations more costly, more burdensome, more destructive to jobs and economic growth,” the senator added. He noted that multiple justices have said they would like to revisit the Chevron precedent.

Cruz filed his brief Thursday, and many other Republican senators joined. Kentucky’s Mitch McConnell, Tennessee’s Marsha Blackburn, North Carolina’s Ted Budd, Texas’ John Cornyn, Arkansas’ Tom Cotton, North Dakota’s Kevin Cramer, Montana’s Steve Daines, Iowa’s Joni Ernst and Chuck Grassley, Mississippi’s Cindy Hyde-Smith and Roger Wicker, Louisiana’s John Kennedy, Utah’s Mike Lee, Wyoming’s Cynthia Lummis, Missouri’s Eric Schmitt, Florida’s Rick Scott, and South Carolina’s Tim Scott signed on. Rep. Mike Johnson, R-La., led the effort in the House of Representatives.

Cruz noted that he filed amicus briefs in other key Supreme Court cases, such as Groff v. DeJoy, 303 Creative v. Elenis, and Students for Fair Admissions v. Harvard College.

“The Supreme Court agreed with the position advocated in my amicus briefs,” upholding “religious liberty, free speech, and equal protection rights” in those cases, he noted.

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https://www.alternet.org/chevron-doctrine/

no lnx twt

'Judicial power grabs': US Supreme Court puts Chevron doctrine 'squarely in the crosshairs'

Brett Wilkins and Common Dreams May 01, 2023

The U.S. Supreme Court said Monday it will hear a challenge to a nearly 40-year administrative law precedent under which judges defer to federal agencies' interpretation of ambiguous statutes—a case that legal experts warn could result in judicial power grabs and the gutting of environmental and other regulations.

The Supreme Court said it will take up Loper Bright Enterprises v. Raimondo—a case in which fishing companies are seeking to strike down the Chevron doctrine, named after the landmark 1984 Chevron USA v. Natural Resources Defense Councilruling that conservatives have long sought to overturn. The case is one of the most cited precedents in administrative law.

The Chevron doctrine involves a two-step process in which a court first determines whether Congress expressed its intent in legislation, and if so, whether or not that intent is ambiguous.

James Goodwin, a senior policy analyst at the Center for Progressive Reform, told Politico thatLoper v. Raimondo has "the potential of being one of the most destabilizing decisions that this court has issued."

President Joe Biden's "environmental and energy agencies were already facing a heavily tilted playing field in the federal judiciary," Goodwin added. "I think eliminating Chevron... would make the prospects of surviving judicial review all the more daunting."

At issue in Loper v. Raimondo is whether the federal government can force herring fishers to fund a National Marine Fisheries Service program used to monitor their work.Two fishing companies argue that while the Magnuson-Stevens Act requires owners of fishing vessels to accommodate federal monitors onboard, the proprietors are not required "to pay the salaries of government-mandated monitors who take up valuable space on their vesselsand oversee their operations."

The Biden administration's argument in favor of the Chevron doctrine leans heavily upon precedent.

"Federal courts have invoked Chevron in thousands of reported decisions, and Congress has repeatedly legislated against its backdrop," a brief filed by U.S. Solicitor General Elizabeth Prelogar and other officials in support of the doctrine notes. The brief adds that the Chevron doctrine "promotes political accountability, national uniformity, and predictability, and it respects the expertise agencies can bring to bear in administering complex statutory schemes."

In 2020, Justice Clarence Thomas wrote in Howard v. United States that "Chevron is in serious tension with the Constitution," while Justice Neil Gorsuch opined last year in Buffington v. McDonough that the doctrine "deserves a tombstone no one can miss."

"Overruling the Chevron doctrine, and undermining agencies and regulatory authority more broadly, has long been a hobbyhorse of Neil Gorsuch and other conservatives," legal journalist Christian Farias tweeted. "In a sense, the outcome of this case is foreordained. It's part of a continuing agenda."

Liberal Justice Kentanji Brown Jackson has recused herselffrom Loper v. Raimondo, explaining that she sat on the circuit court that initially heard the case.

"I still want to know how Ketanji Brown Jackson feels about all of this," Farias wrote. "Her insights are valuable: She was the vice chair of the U.S. Sentencing Commission, an agency that is given Chevron-like deference in some contexts. Making her sit this one out won't help."

RELATED ARTICLES AROUND THE WEB

Judicial deference and the future of regulation ›

Supreme Court to consider overruling Chevron doctrine | The Hill ›

Kavanaugh And The “Chevron Doctrine” - Legal Aggregate ... ›

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