Loper v Raimondo aka the Chevron Decision and Why It's Not Doomsday

Loper is the Supreme Court case that overturned the concept of "Chevron

deference" (made June 2024), and I am writing this down so I don't have to do

it over and over. This is not meant to be rigorous. If you disagree I'm happy

to discuss. Maybe I'll learn something.

To start, let's establish some really basic background that will help clarify

why I don't think the decision is a bad one (and may, in fact, be a good thing

in the long term). It's "high school" type stuff but it's important.

What do the three branches of the Federal government do?

We have "three" branches of government:

- Legislative - These guys make the rules that we follow, aka write the laws.

They're the ones we theoretically elect to represent us. They say what things

*should* be done: how much money should be spent, who should get thrown in

jail for what, what pollutants should be regulated, etc.

- Executive - they make sure that the stuff the legislative branch writes down

actually gets done. These are the "guys with the guns" so to speak. They are

responsible for setting up programs, spending the money Congress allocated,

arresting and finding people, and performing investigations. We elect the

president, but most of the actual work is done by unelected bureaucrats (see

below). They determine what *is* done.

- Judicial - They make decisions about the behavior of the former two

branches. They answer questions like "is the executive branch actually doing

what the law says?" and "can congress write a law like this or is it

unconstitutional?" They determine if the laws are consistent and if they are

being implemented correctly.

There is also a "fourth" branch that gets glossed over:

- Administrative state - This is technically under the executive branch, and

consists of the three-letter agencies and the associated bureaucracy (think

EPA, FDA, etc), these are still the "guys with the guns" but they by and large

have broad authorities that aren't really directly controlled by the

president and are the "expert" agencies that people talk about.

Wtf is Chevron deference?

Chevron deference was a framework established by SCOTUS in 1984 that had an

effect, more-or-less, of forcing courts (particularly federal courts) to defer

to whatever a federal administrative agency said was a correct interpretation of

a law, so long as that interpretation was "reasonable." The question of what is

"reasonable" is not a small one, the answer is constantly unclear, and can have

huge consequences for how a law actually works.

If you look back up at the above three-branches summaries, what Chevron

deference did was take power that should be held by the courts - the ability to

decide if a law is getting applied properly - and gave it to the executive

branch. That is, it gave that power of interpretation to the branch who is also

in charge of the "boots on the ground" that enforce the law.

So why might Chevron deference be a problem for a representative government?

We elect Congress to write down laws on our behalf, and every law is up to

interpretation at some level because the guys that wrote the law aren't the

guys who are actually making it happen. It's impossible to write a law that is

completely unambiguous. It is essential to be able to resolve the any

practical ambiguities once it comes time for the law to go into effect,

otherwise the laws are basically worthless.

So we should let the subject-matter experts who know what they're doing make

the call on how to resolve the ambiguities, and stay out of their way, right?

That's not a good idea, at least not as a general statement. In a lot of cases,

executive agencies are doing good work in the public interest. But let me

float an idea to you: there are *always* cases where the guys in charge are

acting with the best of intentions but make mistakes that need to be

corrected. Maybe they decide to go a little too far with their authority in

an effort to keep people safe and end up being abusive with it (perhaps

imagine them shouting "this is for your own good"). Or maybe, just maybe,

some of the guys that end up being able to wield some power are wicked

sociopaths who want to use that authority to hurt people. I've worked with

people like that, and I am pretty sure there are plenty of that sort working for

the government too. Just think of what Trump's administration would look like

on that end! Without a court, there is no moderating factor that makes sure

the laws our Congressmen wrote down are really being followed.

Whatever the scenario is, if you end up on the shit-end of the agency's stick

and want someone to make sure that the authority that is being bashed on your

head is legitimate, you DON'T want the decision to be made by the guy who is

doing the bashing. That is why the courts and judicial branch are important,

they are the "neutral" party that isn't tied into whatever possibly-perverse

incentives may or may not exist within an executive agency.

A couple of additional observations that I think are important:

1) There is only one set of guys in charge of regulating certain things on the

federal level. For example, there is just one EPA that handles pollution

issues, there are not multiple FBIs, etc. Each of those agencies has one set of

bureaucrats that make decisions, and one set of criteria for doing things.

2) There are a many thousands of judges and courts, and several different

levels of legal authority. Each judge and judiciary can make their own

decisions using their own justifications and references to existing legal

precedent and facts at hand.

If a federal agency becomes corrupt then you (and everyone else) is fucked and

have no recourse if you are forced to deal only with them. With judges and

judiciaries at least you have a gambler's chance to find one that is reasonable.

But these judges still don't know anything about pollution/drugs/etc!

The whole point of running a trial or judicial hearing is for opposing sides

to present evidence and arguments to support their positions, and then the court

comes to a conclusion about which way the ruling should go. Courts and judges

do this all the time for all sorts of stuff, it's literally what they do for a

living.

It is perfectly reasonable to expect that most (all?) judges will understand

that executive agencies have domain-specific knowledge that is very important

for coming to a proper conclusion about a regulation.

In fact, this exact point is laid out in the Loper decision itself. The majority

specifically says that judges can and SHOULD put a lot of weight on information

from executive agencies. The important part is that the ultimate decision now

lies with a third party. So if an agency is being reasonable and interpreting

their authority correctly, cool, no problem. If the agency starts playing

fast-and-loose with it then there is someone who can apply the brakes, and

judges no longer have to accept "fuck you, because I said so" as a justification

for the agency's behavior. Again, think of Trump's administration stretching

legal interpretations to do some nasty, wicked stuff - you'd probably want someone

who is able to pull the brakes on that, right?

Even if you assume all Republican-appointed judges are corrupt (they aren't)

then you still have about half of the judges in the country that will be able to

mitigate any damage the other half does. These guys also don't get

automatically replaced with yes-men when a shitty administration gets in every

other 4 years.

Will judges and courts make perfect decisions all the time or will you always

agree with them? No, but the same thing would be true if you left it with the

executive agency. At least overturning Chevron deferences makes sure

there's another dude in the room who can try to make sure that the rules are

being followed.