7 Takeaways From Arguments In The SCOTUS Case That Could Slay The Administrative State

BY: MARGOT CLEVELAND JANUARY 18, 20241/3

Wednesday’s arguments were all about whether the Supreme Court should do away with the unworkable Chevron deference.

The United States Supreme Court heard oral arguments in two companion cases, Relentless Inc. v. U.S. Dept. of Commerce and Loper Bright v. Raimondo on Wednesday.The bottom-line question before the court concerned whether Congress authorized the Department of Commerce to charge fishing businesses the costof government-mandated observers on their rigs.

But answering that question requires the Supreme Court to first decide whether to overturn the landmark case of Chevron v. Natural Resources Defense Council, the namesake for the Chevron doctrine, which requires courts to defer to an agency’s interpretation of an ambiguous statute so long as the agency’s interpretation is “reasonable.”That’s what Wednesday’s arguments were all about — Chevron and whether the Supreme Court should do away with Chevron deference.

Here are your top takeaways from the hours-long arguments.

1. What Does Chevron Deference Mean?

A blackletter law definition of Chevron deference is easy to provide. As noted above, it is a legal principle that requires courts to defer to an agency’s reasonable interpretation of an ambiguous statute.But Wednesday’s hearing showed the contours of the doctrine are far from clear, with the justices jousting with the solicitor general, who represents the Department of Commerce, over the meaning of “ambiguous.”

A statute is “ambiguous,” Solicitor General Elizabeth Prelogar said, “when the court has exhausted the tools of interpretation and hasn’t found a single right answer.” But asJustice Gorsuch notedin response, just the prior year, agovernment attorney claimed he could not define “ambiguous.”

The meaning of “ambiguous” is key to the doctrine of Chevron deference, which requires two steps. At step one, a court is to “employ[] traditional tools of statutory construction” to determine “whether Congress has directly spoken to the precise question at issue.” According to Chevron, “[i]f the intent of Congress is clear, that is the end of the matter,” and the court must enforce the clear meaning.” But if “the statute is silent or ambiguous with respect to the specific issue,” then the court proceeds to step two, which requires the court to defer to an agency’s interpretation so long as it reflects a “permissible construction of the statute.”

So defining “ambiguous” matters, several of the justices stressed, pointing to the confusion of the lower courts on the question —something that would justify overturning Chevron.

2. Justice Kavanaugh Was a Star

Heading into Wednesday, court watchers knew three justices had already expressed disagreement with Chevron, including Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh. To date, Gorsuch has made some of the most resounding attacks on Chevron deference. And while Gorsuch landed some blows during oral argument, it wasKavanaugh who seemed to throw haymaker after haymaker.

Kavanaugh returned to ground zero — the Chevron decision — and pushed the solicitor general on what he saw as“an internal inconsistency in Chevron itself.”

“It related to footnote 9,” he explained. That footnote provides that “the judiciary is the final authority onissues of statutory construction and must reject administrative constructionswhich are contrary to clear congressional intent.” Accordingly, the Chevron court continued, “[i]f a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.”

Referencing that footnote, Kavanaugh continued, “if you use all the traditional tools of statutory interpretation, you’ll get an answer,” and therefore, there is no step two and no deference. And we know you get an answer, the Trump appointee stressed, “because, in cases where we don’t have an agency involved and we use those same traditional tools, we get an answer.”

Kavanaugh reiterated that point several times throughout the argument, namely that courts interpret statutes regularly, both ambiguous and unambiguous ones, implying that if judges did the tough work of statutory interpretation, there would be no step two deference required.

HTTPS://THEFEDERALIST.COM/2024/01/18/7-TAKEAWAYS-FROM-ARGUMENTS-IN-THE-SCOTUS-CASE-THAT-COULD-SLAY-THE-ADMINISTRATIVE-STATE/

Complicated but very good read

>>20278578

2/3

3. Stakes Are Enormous

Another notable theme from Wednesday wasthe effect of reversing Chevron.

Soon after arguments in Relentless began, Justice Elena Kagan monopolized the questioning by peppering the fishing company’s attorney with hypotheticals. What was most striking, though, were not the difficult scenarios posed, but her assertion that “the court is very rarely in the situation in which you’re talking where it thinks the law means X and instead it says Y,” because of deference under Chevron. “If it thinks it means X, under Chevron, as we’ve understood it and made clear and reigned it in a little bit over these last few years, it’s supposed to say X,” Kagan continued. Chevron really only applies, the Obama appointee suggested, when the “law runs out” and “there’s a genuine ambiguity.”

Kagan’s efforts to portray Chevron as a tie-breaker contrasted sharply with the sky-is-falling arguments the government presented. Overruling Chevron would “shock” “the legal system,” the solicitor general argued in her opening comments to the court. Yet later in her argument, she too seemingly acknowledged that many of the cases are resolved at the first step of Chevron, meaning deference is not even required.Under these circumstances, it is difficult to take seriously the worst-case-scenario prognosespresented by Chevron’s champions.

4. Congress Needs to Do Its Damn Job

Another common theme pushed, especially by Kagan, concerned thequestion of “who decides?” If there is an ambiguity, Kagan posed several times, do we want the agency or the courts to make the policy decision?

The correct answer, however, is neither: Congress should make policy decisionsand draft statutes that provide clarity on the law. When Congress delegates authority to administrative agencies, such authority should similarly be clear.

Chevron deference has allowed Congress for far too long to avoid making tough calls, and while some of the justices seemed fine with that approach, it is inconsistent with our constitutional structure.

5. Stare Decisis

The prudential principle of stare decisis also featured heavily in oral arguments, with the government arguing it cuts against overturning the Chevron doctrine. Businesses need certainty, thesolicitor general argued, and overturning Chevron would destroy the predictability of the law. (What predictability? It seems every court applies the law to what they think it means, hence the need for the SC)

On the contrary, the fishing businesses’ attorneys stressed,what creates uncertainty is Chevron deference, which allows for each new administration to reverse prior regulations. Several justices seemed to share that viewpoint as well. Further, as several of the justices noted, the unworkability of a legal rule can justify its reversal, notwithstanding stare decisis — and several of the exchanges on Wednesdayshowed Chevron deference, in its current iteration, is unworkable.

6. Oh, the Humility!

Another key exchange originated when Kagan pushed Paul Clement, attorney for the fishermen in Loper Bright, on humility.

Chevron is a doctrine of humility, Kagan began, noting that in that doctrine the court “recognize[s] that there are some places where congressional direction has run out, and we think Congress would have wanted the agency to do something rather than the courts.”

“We accept that because that’s the best reading of Congress and also becausewe know in our heart of hearts that Congress — that agencies know things that courts do not,” she continued. (Where did she her law degree a DEI school?)

On top of that, Kagan noted that overturning Chevron conflicted with the principle of stare decisis — another doctrine of humility — which, as she put it, says “we don’t willy-nilly reverse things unless there’s a special justification.” Then came her talking point: “And you’re saying blow up one doctrine of humility, blow up another doctrine of humility, and then expect anybody to think that the courts are acting like courts.” (Wow she really doesn’t want this overturned, not because she believes the mish mash she made up, but because it will reign in the Administrative State, and the Agencies are not legal because they are not one of three agencies the Constitution dictated.)

(HTTPS://THEFEDERALIST.COM/2024/01/18/7-TAKEAWAYS-FROM-ARGUMENTS-IN-THE-SCOTUS-CASE-THAT-COULD-SLAY-THE-ADMINISTRATIVE-STATE/

>>20278581

3/3

Kagan’s comments suggest she sought to sell Chevron to her fellow justicesbased on concerns over institutional integrity, while implying a vote tooverturn that landmark case could only come from hubris.

Gorsuch, who filled the vacancy on the court left by Justice Antonin Scalia’s death andwas having none of Kagan’s argument, called on his predecessor’s name in retort: “One lesson of humility is [to] admit when you’re wrong. Justice Scalia, who took Chevron, which nobody understood to include this two-step move as originally written, turned it into what we now know, and late in life, he came to regret that decision.”

7. Predictions

From oral argument,Gorsuch and Kavanaugh seem definite votes for reversing Chevron deference. Thomas, given his past writings, seems a likely vote for reversal. In one exchange, Justice Samuel Alito seemed to mirror much of Kavanaugh’s thinking, namely that the courts already interpret statutes in other areas, and can do so here too, without needing to defer to agencies.

Both Justices Roberts and Barrett were more coy in their questioning, creating uncertainty about their positions. Conversely Kagan, Sotomayor, and Jackson all favored the Chevron framework.

Bottom line:There is no sure-fire forecast of the outcome. But something Gorsuch said might provide the best insight into the likely result.

During one exchange, the solicitor general suggested that the court merely reiterate to the lower courts the importance of undertaking a robust step-one inquiry.Gorsuch pointedly protestedthat the court had already on multiple occasions reminded the lower courts of their responsibility under Chevron to conduct an extensive analysis of the statute to resolve the question prior to deferring to the agencies.What good is another reminder likely to do?

Right there could be the reason two undecided justices join to form amajority to overturn Chevron — it is just not workable because the lower courts won’t do the work required.

(HTTPS://THEFEDERALIST.COM/2024/01/18/7-TAKEAWAYS-FROM-ARGUMENTS-IN-THE-SCOTUS-CASE-THAT-COULD-SLAY-THE-ADMINISTRATIVE-STATE/

>>20278583

After reading this exchange it is brilliantly clear, that No Democrat President should be allowed to appoint SC since they took the direction of the far left; and the justices they appointed are woefully incapable of interpreting the law without radical and woke ideology!

Sen. Marsha Blackburn Discusses Border Policy: "Build A Wall Sounds Really Good To A Lot Of Us". VA is not even showing up to work and still using Covid excuse, 1 million claims backlogged on Veterans, they signing up illegals for VA healthcare processing illegal medical claims before VeteransScam by Bidan on Houthis being designated as terrorists, the used the lesser designation so they still get money and will still allow them to emigrate to the US. Blackburn gives a lot of info on whats going on many places, esp in US and by Bidan regime. She was the first Senator to endorse Trump last year. (I bet McConnell was not happy with her to do this interview.)

12:37

https://rumble.com/embed/v45lt49/?pub=4

>>20278385

notable

21 Jan, 2024 09:26

Multiple casualties as Ukraine shells Donetsk

The attack targeted a busy market in the capital of Russia’s Donetsk People’s Republic, the head of the city said

At least 18 people have been killed and 13 others wounded in a shelling of Donetsk by Ukrainian forces, Aleksey Kulemzin, mayor of the capital of Donetsk People’s Republic, has said.

The attack hit a busy market in the Kirovsky District, in the south-western part of the city, Kulemzin wrote on Telegram.

The mayor decried the shelling as “another dark day in the history of the city.” Ukrainian forces had “wickedly” decided to wreak death and destruction on the civilians of Donetsk to avenge the failures they’ve suffered on the battlefield, he wrote.

In Kuibyshevsky District in the north-west of the capital, a Ukrainian drone also dropped a grenade on repair workers fixing a heating system. One person was injured and an excavator destroyed in that attack, Kulemzin added.

The head of Donetsk People’s Republic Denis Pushilin has also confirmed the attack on the market, calling it “horrendous.” First responders and operatives are working at the site, clarifying the data on the dead and wounded in the attack, and searching for fragments of munitions used in the bombardment, Pushilin said earlier on Sunday.

According to the republic’s Joint Center for Control and Coordination, three 155mm-caliber shells, a standard for NATO munitions, were fired at the Kirovsky District shortly after 10am local time (8am GMT) and three more around ten minutes later.

Donetsk, which is located close to Russia’s front line, has been a frequent target of Ukrainian strikes in the conflict between Moscow and Kiev. Sunday’s attack, however, counts among the worst suffered by the city, which currently has a population of around 600,000, according to the mayor’s office.

Ukraine’s first deadly bombardment of Donetsk in 2024 took place shortly after midnight on January 1, claiming four lives.

Moscow has repeatedly accused Kiev’s forces of targeting residential areas that have no military significance. Western-supplied weapons such as HIMARS rocket artillery launchers and cluster munitions have been used in attacks on several Donbass cities and villages, claiming numerous civilian lives.

21 Jan, 2024 13:16

‘Barbaric attack using Western arms’ – Moscow decries Ukrainian shelling of Donetsk

The US and its allies are pushing Kiev towards increasingly reckless steps, Russia’s foreign ministry has said

The shelling by Ukraine of the Russian city of Donetsk on Sunday, whichclaimed the lives of at least 25 civilians and wounded 20 others, was “a barbaric terrorist act” carried out with the support of the West, Russia’s Foreign Ministry has said.

Sunday's bombardment of a busy marketin the capital of Russia’s Donetsk People’s Republic was inflicted with weapons supplied to Kiev by the US and its allies, the ministry said in a statement.

“This again confirms [the West’s] direct involvement in the conflict and makes it complicit in the criminal acts of the Zelensky regime, which has once again displayed its inhumanity and hatred towards innocent people,” it said.

“The West’s unrestrained desire to inflict a ‘strategic defeat’ on Russia through the hands of their Ukrainian puppets, whom it is eager to support mindlessly and without limit, is pushing the Kiev regime to increasingly reckless steps, including acts of terrorism, massive violations of international humanitarian law, and war crimes,” the ministry added.

Russia has called on governments and international bodies to condemn this “treacherous attack on the civilian population,” it stated. Failure to do so would be a sign of “silent approval of the murders of civilians” that would only encourage Kiev “to commit even more bloody atrocities,” it also pointed out.

All those involved in the shelling of Donetsk and in other “terrorist attacks” on Russia will face “an inevitable punishment,” the ministry warned, adding that the “desperate strikes” clearly demonstrate the lack of political will on the part of the Ukrainian authorities to search for peace through diplomatic means.

“The need to achieve all of the goals and objectives of Russia’s military operation is obvious. Security threats and acts of terrorism shouldn’t be committed from the territory of Ukraine,” it said.

Russia’s First Deputy Permanent Representative at the UN, Dmitry Polyansky, wrote on Telegram that the attack on Donetsk, which he described as a “another heinous crime” by Ukraine, will “undoubtedly” become one of the main topics of discussion during the UN Security Council meeting on Monday. Russia had requested the UNSC meeting several days ago, to discuss deliveries of Western weapons to the Kiev government.

(https://www.rt.com/russia/591027-donetsk-ukraine-west-weapons/

https://www.rt.com/russia/591021-ukraine-shelling-donetsk-market/

21 Jan, 2024 19:05

Russia knows where we hide weapons – Ukraine

Moscow’s intelligence services are adept at identifying storage depots, Kiev’s air force spokesman has admitted

Stockpiling arms and ammunition in Ukraine makes “little sense”due to the ability of Russian forces to effectively identify and strike such locations, Kiev’s air force spokesman has admitted. Yury Ignat also warned that US-madeF-16 fighter jets could become “a good target” for Moscowif supplied to Ukraine.

Kiev has increasingly complained about a lack of ammunition supplies from the West in recent months. However, speaking to local media outlet Focus on Saturday, Ignat suggested that the Ukrainian military would not be able to stockpile large quantities of ammunition anyway, due to the threat of it being swiftly destroyed by Russia.

“We cannot take a huge number of missiles,”Ignat said, commenting on stockpiles for air defense systems. “One has to store them somewhere and the enemy will know about it sooner or later.”

The air force spokesman also admitted that itmade “little sense to place entire ammunition depots in Ukraine” since Russian intelligence was effective at identifying such locations. This was also true for F-16 fighter jets, he stated, asking: “Will they just arrive here and become a good target for the enemy?”

Western countries announced the creation of a coalition to help Ukraine procure F-16 fighter jets and train pilots to fly the warplanes last year, and the first deliveries are expected later in 2024. The Netherlands and Denmark have spearheaded the effort, promising to donate up to 61 of the aircraft. Earlier in January, Ignat warned that operating both US-made and Soviet-era warplanes would be an “extremely difficult” challenge for Ukrainian troops.

Speaking on Saturday, the air force spokesman alsoadmitted that Ukrainian air defenses would still be ineffective against Russian offensive capabilitiesregardless of Western supplies, citing the sheer number of S-300 missiles that Moscow possesses, making it impossible to shoot them all down. The Soviet-made S-300 systems are primarily designed for air defense and are capable of intercepting both cruise and ballistic missiles as well as shooting down aircraft. At the same time, they can also potentially be used to strike ground targets.

Kiev’s defense minister, Rustem Umerov, stated earlier this month that the nation’s military was facing a “very real” ammunition shortage. Elsewhere, Western media outlets such as the Washington Post, El Pais, and Die Welt have all described an acute ammunition deficit for Ukrainian troops on the front lines.

In mid-January, Ukrainian President Vladimir Zelensky stated that the world was not producing enough weapons to satisfy Kiev’s needs. Those remarks echoed comments by Ukraine’s strategic industries minister, Aleksandr Kamyshin, who claimed in October that the entire global arms production was “not enough” for his country.

(It’s time for Ukraine and Russian peace talks, and the West to not have an illusions how a war with Russia would end up good.)

https://www.rt.com/russia/591046-russia-know-ukraine-hide-weapons/

21 Jan, 2024 15:56

Frontline situation ‘dramatic’ for Ukraine – German reporter

Forces severely lack ammunition and manpower, according to Die Welt’s correspondent in Kiev

The situation on the front lines is becoming increasingly disadvantageous for Ukraine, a Kiev-based correspondent with German daily Die Welt reported this week. Ukrainian troops severely lack ammunition and personnel to fend off Russian attacks, according to Paul Ronzheimer, citing “generals and soldiers”whom he has “constantly been in contact with.”

Kiev’s troops have largely gone on the defensive following the failure of their much-hyped summer counteroffensive. The operation, which began in early June 2023, failed to gain much ground or bring about significant changes to the front lines, despite heavy personnel and equipment losses.

Russia’s Defense Ministry has previously estimated Ukraine’s losses during the failed counteroffensive at 160,000. Moscow also described Kiev’s total losses throughout the conflict as catastrophic, estimating that nearly 400,000 soldiers have been killed or wounded since February 2022.

Late last year, Kiev intensified its mobilization efforts in a bid to replenish the troop pool. President Vladimir Zelensky stated earlier that the military wanted up to 500,000 new recruits.

According to Ronzheimer,“mobilization isn’t working.” Ukraine has also been flooded with reports about difficult situations at the front lines, the reporter said, without mentioning any particular news pieces. Kiev’s forces were also about to run out of ammunition for its Western-made air defense systems, such as America’s Patriot, he noted, characterizing the situation as a “major concern” for the local population.

Ukrainian “generals and …soldiers” also told the correspondent that the frontline situation “is extremely tense,” particularly near the Donbass city of Avdeevka, a strategic location north of Donetsk that’s seen heavy fighting over the past months.

The Ukrainian generals want “more mobilization” efforts, Ronzheimer wrote, adding that they want to “send more soldiers”into the fray.

In another report earlier this week, the correspondent noted that Ukrainian troops had taken to the defensive along the entire front line in the East and the South, and were still struggling to hold ground.Moscow’s troops launched “massive attacks” in 80 areas“along several hundred kilometers of the front,” he added.

“We keep hearing the messages from the soldiers, which become more dramatic,”Ronzheimer reported, adding that Kiev’s troops had warned they would hardly be able to defend their current positions with whatever they had in stock as of that moment.

It will be “very difficult” for Ukrainian troops to hold Avdeevkain the long term, since Moscow’s forces were making steady progress in that area, Ronzheimer said. “The Russians are on the offensive there and are making progress meter by meter,” he added, while noting that such advances are still quite costly for Moscow.

(I predict Zelensky, the leaders in government and some military are going to have a with a real insurrection and Coup by the citizens of Ukraine, started by the IAC soon.)

https://www.rt.com/russia/591030-frontline-situation-dramatic-ukraine-german/

>>20278702

Oh I know why, because if Trump is found guilty, DeSadist is gonna run back in and the Billionaires promised to back him

>>20279072

True that