SCOTUS Will Have a Full Bench to Review Chevron Deference - Could impact AFT "making law".

[Slowhand]

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. - Wikipedia

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SCOTUS Chevron Deference Review

Chevron deference is squarely in the U.S. Supreme Courts crosshairs. The Court has had on its October docket an appeal in Loper Bright Enterprises v. Raimondo which challenges the long standing doctrine.

www.natlawreview.com

Chevron deference is squarely in the U.S. Supreme Court’s crosshairs. The Court has had on its October docket an appeal in Loper Bright Enterprises v. Raimondo, which challenges the long-standing doctrine. First established by the Court in the 1984 Chevron v. NRDC case, the doctrine imposes a two-part test when courts determine whether to defer to an agency’s interpretation of a statute that it administers. First, lower courts determine whether the statute clearly addresses the question at issue, in which case no deference is afforded to the agency’s interpretation. If the statute is ambiguous, however, Chevron then instructs lower courts to defer to the agency’s reasonable construction of the statute.
Loper Bright involves the National Marine Fisheries’ interpretation of the Magnuson-Stevens Fishery Conservation and Management Act of 1976 to require commercial fishermen to fund at-sea monitoring programs and a challenge to the agency’s interpretation of the Act as it applies to the fishing companies. The case also squarely frames the question of whether the Court should overrule or clarify Chevron deference. Because Justice Ketanji Brown Jackson heard arguments in Loper Bright while on the D.C. Circuit, the Court’s newest member recused herself from the appeal.
Likely in order to avoid the risk of a 4-4 tie in what could be a landmark ruling on Chevron deference, on October 13 the Court granted a petition to review Relentless Inc. v. Department of Commerce. The appeal, brought by Seafreeze Fleet LLC, involves a challenge to a similar rule under the National Oceanic and Atmospheric Administration requiring vessel operators to pay for federal observers on their ships. The Seafreeze appeal poses an identical question as to whether the Court should overrule or clarify Chevron. The Court’s grant of certiorari will allow Justice Jackson to participate in arguments and weigh in on a case that could have substantial implications for administrative law.
A special briefing schedule will allow both cases to be heard in the January 2024 session.

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Oct 13 2023

Petition GRANTED limited to Question 1 presented by the petition. The Clerk is directed to establish a briefing schedule that will allow this case to be argued in tandem with No. 22-451, Loper Bright Enterprises, et al. v. Raimondo, Sec. of Comm., et al. in the January 2024 argument session.

Oct 18 2023

The joint appendix and petitioners’ brief on the merits is to be filed on or before Monday, November 20, 2023. Respondents’ brief on the merits is to be filed on or before Friday, December 15, 2023. The reply brief is to be filed on or before Friday, January 5, 2024.

 

[Inigoes]

USSC Grants Review in Loper Bright Enterprises v. Raimondo

Not a 2A case on the face of it, but it challenges Chevron deference to administrative government agencies (e.g. the BATFE) as the "experts". Justice Jackson is recused from the case.

www.mdshooters.com

 

[RFBfromDE]

"If the statute is ambiguous, however, Chevron then instructs lower courts to defer to the agency’s reasonable construction of the statute."

The only reasonable solution is to stay the law and remand it back to the Legislature for remedy/clarity.

Anything short of that is rewarding the Legislature for being lazy.

 

[krucam]

Oral Arguments in Loper & Relentless were held yesterday. I haven't listened to the audio but am pretty certain they took the case to overturn or at least throttle back Administrative Fiats. Bump Stocks, braces and many other admin rulings...

 

[RFBfromDE]

Interpretation of what is written may be OK.

Making shit up and expanding the scope outside of what is written, is not OK.

 

[delaware_export]

read a gorsuch hit piece the other day. went after his mother, early 80's epa director.

also, the article noted that, while scotus likes to answer "specific" questions, iirc this one is about a claim on fishing, the court is appears to be casting a large net on this one.

not just the fishing case, or industry, but clearly going expansive, according to the article. discussion ALLLLLLL the agencies

the problem seems to be that if experts just experted, the things would be ok. when the extremists are considered THE ONLY experts, thats where the abuse comes in.

just like guns... and the atf would be hit by this, if it disolves. hopefully

we do not agree on what is reasonable or common sense

 

[JohnnyE]

read a gorsuch hit piece the other day. went after his mother, early 80's epa director.

also, the article noted that, while scotus likes to answer "specific" questions, iirc this one is about a claim on fishing, the court is appears to be casting a large net on this one.

not just the fishing case, or industry, but clearly going expansive, according to the article. discussion ALLLLLLL the agencies

the problem seems to be that if experts just experted, the things would be ok. when the extremists are considered THE ONLY experts, thats where the abuse comes in.

just like guns... and the atf would be hit by this, if it disolves. hopefully

we do not agree on what is reasonable or common sense

As SCOTUS likely will seek to scale back on the deference across all executive branch agencies, in light of the way the inferior courts are flouting the Haller/Bruen decisions, I hope they shall write something incredibly strong and more difficult to ignore...to the extent that is possible.

 

[pcfixer]

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No. 22-451
Title:	Loper Bright Enterprises, et al., Petitioners v. Gina Raimondo, Secretary of Commerce, et al.

 

[pcfixer]

CONCLUSION
Thomas Jefferson declared that “the government we fought for” is one “in which the powers” are “so divided and balanced” that no branch “could transcend their legal limits, without being effectually checked and restrained by the others.” Jefferson, NOTES, at 195. Chevron disrupts the Constitution’s division and balance of powers, thereby eroding a vital safeguard for liberty and against despotic government.
This Court should overrule Chevron and reverse the judgment below. Respectfully submitted, JOSEPH G.S. GREENLEE Counsel of Record CODY J. WISNIEWSKI FPC ACTION FOUNDATION

 

[Kharn]

Loper transcript
Relentless transcript

So this discussion from Relentless got me thinking:

In Cargill, at the cert stage, the government had to spend significant ink distinguishing between all of the different circuit cases and which did or did not use Chevron. At the merits stage, the government did not reference Chevron a single time in their brief for the petitioners as they're trying to keep the case about statutory interpretation only, but they still have a reply brief.

Cargill pointed out in his cert brief "criminal laws are for courts, not for the Government, to construe,” quoting Abramski v US, ultimately a loser for our side, but an interesting sentiment to already have been published by the SC. His brief for the respondents is due today.

 

[delaware_export]

Hate quoting cnn, but this is from Sandra day oconner’s perspective … and the chevron hearings

https://www.cnn.com/2024/04/09/politics/sandra-day-oconnor-chevron-case/index.html

 

[fishgutzy]

KJB is already a known vote for keeping Chevron. That is how she voted on the related case. Nothing will convince her to reverse herself. So a ruling has to be 5:3 to get rid of the exceedingly bad Chevron precedent.