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Comment by neaden | Hacker News Reader

This court continues to make decisions that might be defensible if you were making them for the first time, but go against decades of precedent in which time many laws have been written on the assumption that things would work a certain way. For a group that claims to be holding to tradition they sure are willing to throw things into chaos.

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Sometimes bad precedents need to be overturned when decades of evidence have accumulated that it was a mistake, and this is one 100% of people should be happy about.

There have been other poorly decided precedents in the past that were later overturned, for example:

https://en.m.wikipedia.org/wiki/Dred_Scott_v._Sandford

Can you explain why that would be the case?

From my perspective it's because the constitution outlines law making as a power given to the legislative branch. To give regulatory agencies the ability to effectively create law by reinterpretation is clearly bad. But to let the courts give broad deference to the executive branch agencies, when challenged on it, is a clear violation of the separation of powers. Beyond that, it is just wrong, in my opinion, for unelected bureaucrats with vested personal interests in these issues to get deference over the people they serve.

Edit: clarification and wording

> when decades of evidence have accumulated that it was a mistake

Would you care to share this evidence?

The legislature are not experts and it is reasonable for them to rely on the experts in the agencies that they created to fine tune implementation. If this was really bad then you should take it up with the legislature to change the laws.

This goes into a core misunderstanding I think a lot of Americans have, that we have three co-equal branches of government. That was not the intention, the Legislature is supposed to be the most powerful, creating laws and with the authority to impeach the other two branches, who have no way of removing legislatures. Over time the other two branches have been accumulating power that should belong to the legislature, and I see this as yet another example.

Then they can consult with experts, put it in a bill, and vote on it, instead of leaving it up to later extra-legislative discretion from political appointees with questionable expertise.

It sounds like you're referring to Locke's view on separation of power? He did hold legislative power supreme over the others like you say, but also noted that legislative power derives its authority from the people (consent of the governed), who have the right to make and unmake the legislature.

> And when the people have said we will submit to rules, and be governed by laws made by such men... nobody else can say other men shall make laws for them; nor can the people be bound by any laws but as such as are enacted by those whom they have chosen, and authorized to make laws for them.

Representation is now extremely poor in the United States. Colonial Americans enjoyed better representation on paper (though virtual) than the average American does today. People have better representation in Commie China. We're an extreme outlier among OECD countries, with over 700k constituents per rep. Compare Nordic countries, with more like 40k per rep, closer to the U.S. in the late 1700s and early 1800s. The only act of Congress I advocate for is repealing the "Permanent" Apportionment Act of 1929.

That doesn’t solve the problem; how do you decide the ambiguity in the meantime? (Concretely, some court is evaluating a dispute. Does the EPA have the right to decree X, or not?)

In the U.S., the federal government only has powers that have been explicitly allocated by the sovereign (the People). The executive, under the guise of any three letters, can't "decree" shit beyond EOs. The President has enforcement and federative powers, not legislative.

>by the sovereign (the People)

This is a mere magick trick that can only ultimately be enforced by private firearms.

You do not hold allodial title to the things which you need to live. You can be involuntarily caged for long periods for mere possession of materials or objects. You are a subject, not a sovereign. Try protecting yourself from kidnap by an enforcer next time he catches you with a joint, you will be swiftly escalated to execution if you successfully fight off application of chains. You are not sovereign if your choices are death or obedience (even to the god/religion "The Law").

Our system kills sovereigns systematically and convinces its subjects they're sovereign (they're not) in order to lessen the odds said subjects learn from the state and get violent against its enforcers. Democracy did not help us: it helps the ruling elite by playing a magick trick on you, convincing you to give up violent power and accept the unacceptable because "We have rules and a system, and you agreed to those rules so tough nuts! You've got a chance for change next election cycle."

Its original intent was noble, but seriously try BSing me that we have any effect after the comedic horror show last night...

> The legislature are not experts and it is reasonable for them to rely on the experts in the agencies that they created to fine tune implementation.

That gets to the deeper problem..

If you have one group that is in charge of creating the rules, interpreting the rules, and enforcing the rules, you can't trust the process is independent and there's equal treatment.

If the legislature are not experts - and they're not on many many topics - they need to either a) find those experts for advice or b) keep their hands out of it.

Legislatures delegating their authority diminishes their office, blurs lines of authority, and lets them abdicate responsibility.

> keep their hands out of it

This. I do not think it is appropriate for legislators to delegate as broadly as they have. The default should be for them to not pass laws, if they don’t have time to understand the issues. Instead, they are basically creating new legislative branches under the executive branch.

> The default should be for them to not pass laws, if they don’t have time to understand the issues.

That’s insanity. Why wait when you can have a regulatory body dedicated to understanding and regulating based on those understanding. If they fuck up , the delegating power has the ability to rein it in.

>If they fuck up , the delegating power has the ability to rein it in.

We synonimize "an Act of Congress" with something long, drawn out, and ardorous for a reason. With that ability to rein in locked behind gaining the buy in of the rest of the Congress, it leaves an Executive Agency able to play "scope chicken" with the Congress.

Making law is Congress's job. Id a rule needs making, the Legislature should have in place the framework to handle the act of rulemaking; but importantly, seperately from the enforcement mechanism. The Judiciary should equivalently accommodate a venue for redress of grievance w.r.t interpretations in play.

Failure to do the above without the seperation of power is a failure to govern.

It is much worse than just creating a legislative branch under the executive. Executive agencies are judge, jury, and executioner when it comes to their rules. They have their own enforcement teams, courts, and make up their own penalties for violating the rules they made up. They are like a government inside the Constitutional government.

The government is required to give everybody a speedy trial with a jury of their peers. Fines are also required to not be excessive. Violate an executive agency rule and you will not get what is required by the Constitution.

> If the legislature are not experts - and they're not on many many topics - they need to either a) find those experts for advice or b) keep their hands out of it.

That's why we have Congressional hearings, etc. It's not like the legislature makes laws in a locked room, consulting nothing but their own minds.

> If the legislature are not experts - and they're not on many many topics - they need to either a) find those experts for advice or b) keep their hands out of it.

The way our system is set up, they generally don't have time to do a good job under a), and leaving things alone under b) would clear the field for polluters, fraudsters, etc.

Someone upthread said that Chevron deference is a useful hack; that's absolutely right. Sure, there's technical debt there, but the power structure and individual incentives for legislators have made the hack a useful way to keep the system running.

> the power structure and individual incentives for legislators have made the hack a useful way to keep the system running

And abdicate responsibility from people we can hold accountable via elections to anonymous bureaucrats that may be knowledgable in their fields but we'd never know it.

If it's important, Congress should be willing to write it into law (or amend the Constitution?) instead of depending on a 40 year old hot fix.

> Congress should be willing to write it into law (or amend the Constitution?)

That'd be the preferred solution, but given the existing incentives, it's almost certainly not going to happen.

It's a version of the installed-base problem: The existing House members and senators got where they are through the existing system, and it's not at all in their personal interests to make major changes.

It's also akin to the software rule that scrapping a running system and rewriting it "the right way!" is dangerous, because the running system (hacks and all) encodes a lot of hard-won knowledge about edge- and corner cases, bottlenecks, etc. In politics, it's especially true, because we have so many different players — with often-conflicting interests — who have very different ideas of what "the right way" would be. "Refactoring" is the best we can realistically hope for.

>If the legislature are not experts - and they're not on many many topics - they need to either a) find those experts for advice or b) keep their hands out of it.

Or c) set aside budget to fund their own infra and pool of expertise to enable members of the Branch to conduct legislative business competently, and most importantly, independently, of the other two branches, like was the original intent behind the Library of Congress.

>If you have one group that is in charge of creating the rules, interpreting the rules, and enforcing the rules, you can't trust the process is independent and there's equal treatment.

You don't have to trust them. You can sue them for not going through a rulemaking process that includes publishing proposed rules and reviewing public comment, or for a rule that "was arbitrary, capricious, or an abuse of discretion."

https://www.federalregister.gov/uploads/2011/01/the_rulemaki...

That happens a lot. The first two (was it three?) travel bans during the Trump term were struck down this way.

>Legislatures delegating their authority diminishes their office, blurs lines of authority, and lets them abdicate responsibility.

Then they should be replaced at the ballot box with legislators who will reclaim the duty to author the rules. Why is the Supreme Court the entity to force this change and ignore the intent of Congress?

> You can sue them for not going through a rulemaking process that includes publishing proposed rules and reviewing public comment, or for a rule that "was arbitrary, capricious, or an abuse of discretion."

Or you can remember that the Executive Branch's job is to enforce the laws, not write them.

That is a feature, not a bug. Supreme Court decisions are informed by precedent, not bound by precedent. If that creates chaos it's not their fault. Blame the legislators who wrote bad or vague laws in the first place. If the laws were sufficiently clear and specific then the Supreme Court wouldn't have much work to do.

And let's not have any ridiculous claims that the Supreme Court needs to legislate from the bench because Congress is dysfunctional. In most of the areas where Congress has failed to pass new or revised laws there are real divisions or lack of consensus in the country. It's more important to preserve our Constitutional separation of powers even if that leads to bad outcomes on particular issues.

The US is a common-law country. By stare decisis, the courts are indeed supposed to be bound by precedent.

> The US is a common-law country. By stare decisis, the courts are indeed supposed to be bound by precedent.

And that doesn't work, and it didn't even work to start.

IIRC, in Britain, before the US was independent, "common law" became so unworkable and and unjust because the courts were so rigidly "bound" by precedent (like you advocate), that a whole other system of law "equity" was created.

You have misunderstood. The Supreme Court isn't bound by stare decisis. They are free to overturn precedent if they have appropriate rationale.

https://www.americanbar.org/groups/public_education/publicat...

So if something that is seen as a bad idea should be kept in place because "that's the way we've always done it"?

New laws can be passed to put new policy into place and change those long-standing things explicitly.

Obviously an outright bad idea should not be kept around just because that's how we have always done it, but don't underestimate the value of predictability and stability. Society can't operates if laws change every day, even if it's driven by a desire to make the laws better.

"Obviously an outright bad idea should not be kept around just because that's how we have always done it.."

But who decides that? Laws do NOT change every day and I look forward to your examples of that. The problem is that laws are not changing, and legislators are depending on the courts to do the hard work for them.

> Society can't operates if laws change every day

Funny you should mention that. Gorsuch wrote the exact same thing while arguing in favor of overruling Chevron. You can find it by Ctrl+F-ing the string "though the laws do not".

> "Chevron’s fiction has led us to a strange place. One where authorities long thought reserved for Article III are transferred to Article II, where the scales of justice are tilted systematically in favor of the most powerful, where legal demands can change with every election even though the laws do not, and where the people are left to guess about their legal rights and responsibilities"

Most of the decisions that get to the Supreme Court could reasonably be decided either way. If they were simple, clear decisions they wouldn't make it to the highest court after all. I don't necessarily think the original Chevron decision was the "correct" choice, or the "incorrect" choice, but it was the choice that was made and for 40 years Congress wrote laws and funded agencies on the assumption that that is how things would continue to work. If it had been decided differently all those years ago, then 40 years of laws would have been written differently. It's like the standard plug in the US. Was that the objectively correct choice for what a plug should look like? No. Is there possibly a better configuration that some other country is using? Yes. Would it be worth it to make the change now and make everyone in the country change all of their plugs and electronic devices? No.

In any of those laws Congress passed in the past 40 years they could have taken the opportunity to codify the original Chevron decision into law. So the fault for any disruptions or bad outcomes lies entirely with them. Voters who are unhappy with the situation should complain to their members of Congress.

No but this is not a bad idea. Why should congress have to be experts and pass hyper specific laws for every aspect of a government agency rather than just deferring to experts?

Because those experts haven't been able to craft unambiguous laws that aren't up for interpretation. There's nothing stopping congress from deferring to those experts still.

If Congress lacks expertise on a particular topic then they can front load the process and seek expert input, then write that into the legislation. There's no need to delegate that to the Executive branch for interpretation after the law has been passed. This might slow down the pace of legislation, which would be fine.

The current pace of legislation is glacier slow

Which is fine. Legislation shouldn't be rushed, and the default should be to do nothing.

There should be a very high threshold for "we're pressing the reset button on a regulatory infrastructure built on decades worth of precedent, #yolo!", yes.

> There should be a very high threshold..

there's no higher threshold in the US than a US Supreme Court decision

The Court's threshold for doing this should be higher than this decision implies.

it's funny how progressive turn into conservatives, as though we need to cement whatever happened in the 70s

things clearly took a turn for the worse since then in many fundamental ways specific to the progressive "revolutions"

To paraphrase Linus: If it's a bug that people depend on then it's not a bug- it's a feature.

By this logic, slavery was a feature and not a bug.

It's not even years of precedent, they contradicted themselves on this decision today in their separate ruling on allowing public sleeping bans. Roberts said "Why would you think that these nine people are the best people to judge and weigh those policy judgements?". SCOTUS follows tradition when it suits their lobbied interests, and disregards tradition if it contradicts them.

> Why would you think that these nine people are the best people to judge and weigh those policy judgements?

A really really good question. And completely compatible with this ruling.

This reads more like interpretation is at fault rather than the actual ruling. The SC ruled in favor of the state(s), as in the fining for that reason is not unconstitutional or an overreach.

Long term, I wonder if this destroys the Supreme Court. I see no reason why a future liberal majority would feel bound by any conservative precedent in the future. Replace respect for precedent with whatever position wins a majority and the incentive to pack the court seems irresistible.

Seems like we're evolving from common to civil law, probably for the better in the long run.

I tend to agree that civil law should be better over the long term, but I don’t see this Supreme Court letting that happen. They pretend to be deferent to congress when congress is ineffective or on their side, but the script can be easily flipped or used both ways at the same time like they do with states rights. But ultimately they would not let themselves be constrained by a hostile congress.

This Court seems to be reducing both executive and judicial power, pushing it back to the legislature where it belongs.

But we now have worse representation in the United States than in Communist China, we're an extreme outlier among every OECD country, and this Congress is close to doing literally nothing:

https://en.wikipedia.org/wiki/List_of_acts_of_the_118th_Unit...

So the result will be reducing federal power itself, kicking it back to the States. You know, laboratories of democracy. And now seemingly autocracy and theocracy as well...

And this would be true for any activist court. To me, the combination of a flaccid Congress plus activist court implies an era of disposable precedents.

How do you imagine a liberal majority would come about within the next few decades? This was engineered over decades and now the conservatives have all the marbles; that's why they feel so free to rule how they've always wanted.

I imagine you’d need circumstances similar to those that nearly resulted in the Judicial Procedures Reform Bill of 1937, which would have granted Roosevelt the ability to appoint 6 additional Supreme Court Justices. Namely:

- National crisis unifying popular support for liberal legislation. - Liberal control of the executive and legislative branches. - A series of supreme court rulings that effectively thwart a popular liberal agenda.

I have no idea if this is likely; however it nearly happened less than a century ago during a period with noticeable parallels to our circumstances today.

There was a 7-2 liberal majority during the 1970s. They didn't feel bound by precedent either. That's how we got, for example, Roe v. Wade. (No, there was no precedent for "a penumbra" of privacy giving a right to abortion in any previous court decisions. And whether you like the decision is orthogonal to whether the court was making stuff up completely outside the realm of precedent.)

Conservatives aren't doing something that liberals have not done. Liberals will probably do it again when they have the chance. And so will conservatives.

You don't have to like it, either because it goes against what you want or because you don't think decisions should be made like that. But don't think that this hasn't happened before.

> There was a 7-2 liberal majority during the 1970s.

Can you break this down? I'm looking at the Martin-Quinn graph[1] for the 70s and I'm seeing a pretty centrist, if not majority conservative, slant for that decade.

[1] https://en.wikipedia.org/wiki/Martin%E2%80%93Quinn_score

That seems likely. We already see it in the executive, with sweeping policy changes every time the office changes parties. Seems to be what we want, however, collectively.

The pendulum swings. For decades we had an activist progressive court and now we have an activist conservative court.

"(4) Because Chevron’s justifying presumption is, as Members of the Court have often recognized, a fiction, the Court has spent the better part of four decades imposing one limitation on Chevron after another. Confronted with the byzantine set of preconditions and exceptions that has resulted, some courts have simply bypassed Chevron or failed to heed its various steps and nuances. The Court, for its part, has not deferred to an agency interpretation under Chevron since 2016. But because Chevron remains on the books, litigants must continue to wrestle with it, and lower courts—bound by even the Court’s crumbling precedents—understandably continue to apply it. At best, Chevron has been a distraction from the question that matters: Does the statute authorize the challenged agency action? And at worst, it has required courts to violate the APA by yielding to an agency the express responsibility, vested in “the reviewing court,” to “decide all relevant questions of law” and “interpret . . . statutory provisions.”"

"Stare decisis, the doctrine governing judicial adherence to precedent, does not require the Court to persist in the Chevron project. The stare decisis considerations most relevant here—“the quality of [the precedent’s] reasoning, the workability of the rule it established, . . . and reliance on the decision,” Knick v. Township of Scott, 588 U. S. 180, 203 (quoting Janus v. State, County, and Municipal Employees, 585 U. S. 878, 917)—all weigh in favor of letting Chevron go. Chevron has proved to be fundamentally misguided. It reshaped judicial review of agency action without grappling with the APA, the statute that lays out how such review works. And its flaws were apparent from the start, prompting the Court to revise its foundations and continually limit its application."

So.... Feels like all this ignoring Stare Decisis is setting the groundwork for the court to get packed and become another joke of our governance mechanism.

You should read Gorsuch's concurrence. It's all about the meaning of "common law" and "stare decisis". It's quite educational and even eye opening.

>> This court continues to make decisions that might be defensible if you were making them for the first time, but go against decades of precedent

The Roberts court has overturned fewer precedents per term than any court going back to at least the Warren court which began in 1953. If your criteria for evaluating a court is respect for precedent, you should consider the Roberts court to be a candidate for greatest of all time.

What I'm hearing is that qualitative is clearly more important than quantitative.

> What I'm hearing is that qualitative is clearly more important than quantitative.

I'm hearing a lot of "my-side likes this, therefore changing it is wrong." Liberals think it's the highest expression of the beauty of our republic when precedent is overturned to take things in a more liberal direction; but when precedent is overturned to take things in a different direction, they think it's an unjust violation of stare decisis and get outraged.

As understood (by liberals), the courts are a ratchet that moves things from less liberal to more liberal. To go the other way is evidence of inexcusable corruption and a threat to democracy itself, warranting urgent and extreme action to save society.

> To go the other way is evidence of inexcusable corruption and a threat to democracy itself, warranting urgent an extreme action to save society.

So we live in interesting times. Great.

And to listen to many conservatives, any time a left-leaning decision is made by the court, we are one step closer to chaos, anarchy, depravity, fire and brimstone and the apocalypse.

Don't act like complaints about the courts are just liberal tantrums.

> Don't act like complaints about the courts are just liberal tantrums.

They're not usually so much tantrums as biased, hypocritical argumentation developed backwards to arrive at the politically desired result.

Again, s/liberal/conservative/g and you get a comment just as accurate. But do continue to beat the "liberals suck" drum.

Except it wouldn't apply to this thread or the reaction to this event.

If you're being a jerk, and I'm commenting on your behavior, I'm not making any kind of error if I don't mention how Steve was being a jerk two weeks ago. And honestly, insisting that I talk about Steve would be an effort to deny responsibility and distract from your own behavior.

While corporations are cheering about the devastating the ability of the EPA to attempt to enforce its writ, "environmental protection", it doesn't make someone a jerk to lament the negative impact therein.

How long as separate but equal a precedent? How many laws were made with that assumption in mind?

Just because something is a precedent doesn't mean it is good or should continue.

It depends on which tradition they're talking about. Could it predate the rule of law?

I believe the conservative judges use the following process flow:

1. Is the prior precedent what I want? If no, go to 2.

2. Is the prior precedent consistent with "textualism", i.e. can we find enough period writings which use the words in the constutition a certain way? If no, go to 3.

3. Is the prior precedent consistent with "originalism", i.e. can we find enough period writings which suggest some people peripherally or directly involved with the drafting of the constitution (or state constutitions) thought of an issue in the same way we want to rule? If no, go to 4.

4. Rule that way anyways, and just do your best to justify it with whatever you dug up for 2 and 3.

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