Comment by losvedir | Hacker News Reader

Comment by losvedir | Hacker News Reader

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> The Chevron deference doctrine or just “Chevron deference” was limited to cases where a legislative delegation to an administrative agency on a particular issue is implicit rather than explicit

This is the first time I've heard this specific dimension about it. Am I correct in understanding that if the law explicitly delegates to an administrative agency, that's a different scenario?

I've read all about how the Chevron defense keeps the government functioning because we don't want Congress to have to decide every little thing in the laws, and to let the experts in the agency figure out the details. But it sounds like if the law explicitly says "XYZ to be determined by Agency ABC" then that's not something covered by the Chevron defense? Have there been lawsuits against agencies in that case? If not, why not? And does that mean the answer going forward is for Congress to be explicit about what they're delegating and to whom? That doesn't seem so bad, but maybe I'm misunderstanding what it's saying here.

The problem is when the law is vague regarding a particular issue. Look at Massachusetts v. EPA (2007).

The Clean Air Act (CAA) of 1963 requires the EPA to set emission standards for "any air pollutant" from motor vehicles or motor vehicle engines "which in his judgment cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare."

The main question of that case was whether CO2 and other greenhouse gases are an "air pollutant" that causes "air pollution". Unsurprisingly, the CAA didn't specify each and every "air pollutant", rather Congress implicitly left it to the EPA.

So the problem was not whether Congress had explicitly delegated regulation to an administrative agency but whether the EPA was required by statute to regulate CO2 and other greenhouse gases.

Going forward, deference to the administrative agency is not required. The judiciary can certainly still side with an administrative agency. However, the courts will have to play a larger role in addressing technical statutory questions. The courts have always been able to disregard agency expertise (as SCOTUS just did), this just signals a greater willingness to do so.

IANAL, but my understanding is that chevron interacts weirdly with the administrative procedures act.

So, one of the big problems with chevron deference is that when the laws says XYZ to be determined by agency ABC and agency ABC determines Q, but an election happens, the president gets up and makes a big populist speech, issues an executive order and now agency ABC determines R instead. This is a problem because under chevron + APA, the agency determination of both Q and R which may be contradictory both have the force of law and the courts were bound to simply defer to the interpretation.

You have agency making rules which have the force of law but the "law" is changing without the authorizing statute having changed and the courts' hands were tied by chevron. This is especially problematic when the rulemaking has associated criminal penalties.

Now, just because chevron deference no longer exists doesn't mean that agencies cannot make rules, but it does mean that if an agency makes a wild swing in rulemaking without a change in the underlying statute then its much easier to challenge that action. Ultimately, we want these things in the hands of the representative branch of the legislature anyway. One can dream anyway...

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