Supreme Court: Chevron Deference

jbarrass said:
But if they want to make unreasonable interpretations, try you and punish you, they would have to defend them in court.
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Which is exactly the case now. Chevron requires the interpretations of the government experts to be, and I quote, “reasonable”.
 
Pinecone said:
The big issues, IMO, are that agencies randomly change interpretations without a rule making process.

The regs go through a formal process. Interpretations and advisories do not and may not be in line with the laws or the regulations.
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In my professional experience, across a number of industries, this is exactly the problem.
 
midlifeflyer said:
What if deciding that it was OK to use GPS in lieu of VOR required 6 month to a year of regulatory activity?
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It actually took longer than that.

Garmin GPS for aircraft dates back to the 80s. It took years before they were approved for approaches. And then only for certain ones that were approved as GPS Overlay approaches.
 
Pinecone said:
It actually took longer than that.

Garmin GPS for aircraft dates back to the 80s. It took years before they were approved for approaches. And then only for certain ones that were approved as GPS Overlay approaches.
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'crats weren't the primary cause for delays. There needed to be sufficient SVs for FDE and such. And then there was the challenge of creating (and approving) the GPS approaches. Quite a bit goes into making approaches, more than the average pilot realizes.
 
Mahneuvers said:
I thought this article informative. https://www.cnn.com/2024/01/17/politics/supreme-court-epa-neil-gorsuch-chevron/index.html

Disclaimer: I was a classmate of Neil.
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good article.

The argument for maintaining Chevron I believe the Court will reject is the idea that “Chevron precedent rightly puts authority for crucial policy in the hands of regulators who would know best how to protect the public interest”. Perhaps not often, but we have certainly seen cases where this hasn’t been true, they either didn’t know best or weren't working in the public’s interest. The PBOR was somewhat a repudiation of Chevron already. We know agencies get things wrong.

The tougher challenge for the Court will be to construct a test that limits the bureaucratic authority of agencies without overwhelming the courts.
 
Pinecone said:
It actually took longer than that.

Garmin GPS for aircraft dates back to the 80s. It took years before they were approved for approaches. And then only for certain ones that were approved as GPS Overlay approaches.
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I was one change as an example. so let’s expand it.

The basic regulatory authority for GPS is in FAR 1.1.

Suitable RNAV system is an RNAV system that meets the required performance established for a type of operation, e.g. IFR; and is suitable for operation over the route to be flown in terms of any performance criteria (including accuracy) established by the air navigation service provider for certain routes (e.g. oceanic, ATS routes, and IAPs). An RNAV system’s suitability is dependent upon the availability of ground and/or satellite navigation aids that are needed to meet any route performance criteria that may be prescribed in route specifications to navigate the aircraft along the route to be flown. Information on suitable RNAV systems is published in FAA guidance material. (my emphasi)​

Pretty loosely goosey.

So, let’s think of the progression of GPS from basic enroute to LPV and RNP and beyond. My sense is that they were based on incremental acceptance of increasing capability. Now, take that timeline and make just half of the substantive changes in permitted IFR use subject to notice and comment. What kind of timeline do you get?

From where I’ve sat for a few years, I think agency action through interpretation and non-regulatory guidance is neutral; just a process. Results can be good or bad. My sense is that there has been more good than bad, as with increasing acceptance of GPS capability, but that’s admittedly a biased value judgment. The real problem is, what are the standards for challenging the ones we think are bad. Thats where I think Chevron and its modifications come into play.
 
Clip4 said:
Actually, that is not the problem. The problem is the changes of the interpretations when the president changes.
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Not really, presidents come and presidents go and directors come and directors go, but the lower level bureaucrats are relatively constant.
 
Bob Noel said:
'crats weren't the primary cause for delays. There needed to be sufficient SVs for FDE and such. And then there was the challenge of creating (and approving) the GPS approaches. Quite a bit goes into making approaches, more than the average pilot realizes.
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The first ones were overlay approaches. The same as the VOR approach but allowing guidance using GPS. Not new approaches.
 
midlifeflyer said:
IMO, yes they are exaggerating.

The argument against Chervon is not about authority or ability to write regulations. Writing regulations involves a fairly strict notice and comment process and authority to write them is given by statute. Chevron deference is about agencies (a) interpreting their own authority to write regulations and (b) interpreting the meaning of statutes and properly enacted regulations.

In our world, I guess we can point to the super-broad way the FAA has defined "compensation" as something "bad" that might not be there in a non-Chevron world. Of course, we can also point to the entire body of "non-regulatory" FAA guidance, including the AIM and the ACs. Literally every big advance we've seen in the RNAV/GPS world is "interpretation," neither "statute" nor "regulation." What if deciding that it was OK to use GPS in lieu of VOR required 6 month to a year of regulatory activity?

But getting rid of Chevron does not even mean the end of interpretations and non-regulatory guidance. Without getting into the weeds, its about what happens when a regulation or or interpretive guidance is challenged. How is it tested for legality? Pure Chevron deference comes down to, "so long as an agency interpretation is rational, it will be upheld." Without Chevron, it just means that challenges would be measured by a different standard.

That's what I think all the cases which have limited Chevron have done - changed what can be challenged and how. And, while I could be wrong, that's all I really see coming out of this case. The decision will be to either uphold or reject the National Fisheries requirement that fishing boats pay federal observers. The decision may be reached by articulating a new standard of deference - what type and how much.
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Like you, I have serious doubts that SCOTUS will throw out Chevron entirely. I also think that some trimming would be beneficial. I am aware of cases where the FAA basically interpreted the regulation ex post facto and applied it to some situation and putative miscreant. It seems to me that some deference might well be given to official agencies published interpretation, but absent having published a formal interpretation and the rationale therefor, I think it probably better that the courts look at such ad hoc interpretations with some level of criticality.
 
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Kristin said:
Like you, I have serious doubts that SCOTUS will throw out Chevron entirely. I also think that some trimming would be beneficial. I am aware of cases where the FAA basically interpreted the regulation ex post facto and applied it to some situation and putative miscreant. It seems to me that some deference might well be given to official agencies published interpretation, but absent having published a formal interpretation and the rationale therefor, I think it probably better that the courts look at such ad hoc interpretations with some level of criticality.
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Yes, Merrell. I'm sure you remember it. That was a pilot who misheard an instruction for another aircraft and thought is was for him. He read back the instruction but ATC didn't hear it so didn't correct it. The FAA went after him, basically interpreting 91.123 as a strict liability regulation. The NTSB actually disagreed with the FAA. Thought it was ridiculous to ding a pilot who read back the instruction the way we're supposed to in order to give ATC an opportunity to correct it. The FAA didn't like that and went to the Court of Appeals.

Part of the decision was that agency interpretations can be made during litigation. I wasn't particularly surprised or bothered by that part. Statutes and rules get interpreted during litigation all the time. The problem was it had t be deferred to.

The deference issue is interesting because it took place on two levels. This was before the first Pilots Bill of Rights and the NTSB was statutorily required to defer to the FAA's interpretation; then of course, the Court of Appeals applied Chevron deference. I always though it would be interesting if the case were retried post PBoR and if the Court of Appeals would defer to the FAA or the NTSB, both of which have agency expertise about the FARs.
 
Kristin said:
some deference might well be given to official agencies published interpretation,
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Yes, a published interpretation, that can be known by those affected a priori and has an opportunity to be questioned and refined, can be given some deference.


midlifeflyer said:
Part of the decision was that agency interpretations can be made during litigation.
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That's a problem. We can't let a powerful agency make things up willy-nilly and on the fly. Especially when it can result in massive fines and felony convictions. It is essentially creating an ex post facto law, even though it's called an "interpretation" of a "regulation," rather than a law.

Typically in criminal law, the "rule of lenity" applies; that is, if a law has a reasonable interpretation that would favor the defendant, the court should interpret the law in the way most favorable to the defendant. Statutory law has reached the point where penalties are sometimes as severe, or even more severe, as those in criminal law, and lenity should apply.
 
midlifeflyer said:
Yes, Merrell. I'm sure you remember it. That was a pilot who misheard an instruction for another aircraft and thought is was for him. He read back the instruction but ATC didn't hear it so didn't correct it. The FAA went after him, basically interpreting 91.123 as a strict liability regulation. The NTSB actually disagreed with the FAA. Thought it was ridiculous to ding a pilot who read back the instruction the way we're supposed to in order to give ATC an opportunity to correct it. The FAA didn't like that and went to the Court of Appeals.

Part of the decision was that agency interpretations can be made during litigation. I wasn't particularly surprised or bothered by that part. Statutes and rules get interpreted during litigation all the time. The problem was it had t be deferred to.

The deference issue is interesting because it took place on two levels. This was before the first Pilots Bill of Rights and the NTSB was statutorily required to defer to the FAA's interpretation; then of course, the Court of Appeals applied Chevron deference. I always though it would be interesting if the case were retried post PBoR and if the Court of Appeals would defer to the FAA or the NTSB, both of which have agency expertise about the FARs.
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That was the big case I was thinking of, but couldn't remember its name.

The more I think about it, the more I think that there is merit to the approach of requiring the agency to publish its interpretation and rationale before it receives any deference. Otherwise, the court's should treat the agencies interpretation on the same level that they treat any expert witness. Publishing a formal opinion allows interested parties to challenge before running afoul of it, and if the agency comes up with something that Congress really did not intend, then Congress will have a chance to amend the statute.
 
Kristin said:
That was the big case I was thinking of, but couldn't remember its name.

The more I think about it, the more I think that there is merit to the approach of requiring the agency to publish its interpretation and rationale before it receives any deference. Otherwise, the court's should treat the agencies interpretation on the same level that they treat any expert witness. Publishing a formal opinion allows interested parties to challenge before running afoul of it, and if the agency comes up with something that Congress really did not intend, then Congress will have a chance to amend the statute.
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Agreed. The problem isn't that there's interpretation taking place. That's normal. The problem is blind acceptance.
 
Half Fast said:
Typically in criminal law, the "rule of lenity" applies; that is, if a law has a reasonable interpretation that would favor the defendant, the court should interpret the law in the way most favorable to the defendant.
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Unfortunately, some rules tend to be lip service with application in favor of the government more often than not.

I'm thinking of the "harmless error" rule. Basically a rule that an appeal will not reverse a conviction due to error if the error did not prejudice the defendant. The standard is that the error was harmless beyond a reasonable doubt. Yeah sure.

Back in the day, I had a case where the defendant was convicted on two offenses. The trial involved about a dozen defendants and as many lawyers. The appellate court ultimately tossed one of the convictions out because there was no evidence presented on that count. On the other, the court decided there was error but it was "harmless error."

I could never figure out how any error can be "harmless beyond a reasonable doubt" when we have a jury that was willing to convict based on no evidence at all.
 
midlifeflyer said:
Agreed. The problem isn't that there's interpretation taking place. That's normal. The problem is blind acceptance.
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I am hopeful that the result will be a middle ground, which is as it should be, IMO. From what I have read about the oral arguments, there seems to be four justices willing to take a meat ax to Chevron, but it seems that Barrett may be on the fence. Hopefully, a compromise will be the result. Perhaps a combination of Major Questions doctrine and deference only to published agency opinions. We need the bureaucracy, we just need to keep it on a leash.

It is somewhat unnerving the number of people that basically want to end the federal government's ability to operate. They might have second thoughts when our GDP dropped below that of Mexico as a result. I generally have a small government philosophy, we obviously need some federal government.
 
As we have seen recently in several cases, the decisions and opinions issued by the Federal courts have varied greatly on what amount to the same questions of law depending on the district or circuit from which they come. I agree that some further limitation on the sometimes arbitrary nature of the executive is appropriate, one needs only to look at how immigration policy has swung back and forth under the last three administrations without any Congressional input, but I fail to see how removing in total the Chevron deference simplifies rather than complicates any relevant administrative question.

Sure, maybe if we had a functional Congress to take up and resolve these issues through legislation, but we don't.

I know, dancing close to the edge of the TOS, but hopefully inside the bright line.
 
The one that probably bugs me most is the FAA's ever-expanding interpretation of what constitutes "compensation." I'd like to see something that puts some bounds around that one before some unsuspecting pilot gets busted for taking a date flying in hopes of a future benefit.
 
midlifeflyer said:
Yes, Merrell. I'm sure you remember it. That was a pilot who misheard an instruction for another aircraft and thought is was for him. He read back the instruction but ATC didn't hear it so didn't correct it. The FAA went after him, basically interpreting 91.123 as a strict liability regulation. The NTSB actually disagreed with the FAA. Thought it was ridiculous to ding a pilot who read back the instruction the way we're supposed to in order to give ATC an opportunity to correct it. The FAA didn't like that and went to the Court of Appeals.

Part of the decision was that agency interpretations can be made during litigation. I wasn't particularly surprised or bothered by that part. Statutes and rules get interpreted during litigation all the time. The problem was it had t be deferred to.

The deference issue is interesting because it took place on two levels. This was before the first Pilots Bill of Rights and the NTSB was statutorily required to defer to the FAA's interpretation; then of course, the Court of Appeals applied Chevron deference. I always though it would be interesting if the case were retried post PBoR and if the Court of Appeals would defer to the FAA or the NTSB, both of which have agency expertise about the FARs.
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What happened to the pilot, besides being out legal fees?
 
SMH

it's not an either or proposition.
 
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Clip4 said:
Actually, that is not the problem. The problem is the changes of the interpretations when the president changes.
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Which is why Congress, when it forms the laws should be forced to do their job and actually write good specific and detailed laws using subject matter experts and instead of the handwaving "we have to do something" legislation they do today that then turns into interpretation and enforcement by agencies.

I worked with NIST and many other agencies over my career. They're not bad people, they're not incompetent and I suspect that in most cases they are not influenced politically. It's just they have no skin in the game. The easiest thing in the world for them to do is say no. None of them ever lost a job by saying no.
 
Pugs said:
Which is why Congress, when it forms the laws should be forced to do their job and actually write good specific and detailed laws using subject matter experts....
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Agreed.

Even when they do, though, the agencies still twist and distort and stretch. Read how Congress defined “machine gun” then read about ATF’s actions against forced reset triggers. I believe it’s still bouncing around the courts.
 
Pugs said:
Which is why Congress, when it forms the laws should be forced to do their job and actually write good specific and detailed laws using subject matter experts and instead of the handwaving "we have to do something" legislation they do today that then turns into interpretation and enforcement by agencies.
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The "agencies" are in the Executive branch. The deferring to the agencies is laziness by the legislative branch and MASSIVE transfer of power to the executive branch. Remember the executive branch is the bureaucratic state. When the president and/or executive agencies of either stripe can unilaterally change law, we have EXACTLY what the founders strove to prevent--an imperial presidency.
 
Half Fast said:
Agreed.

Even when they do, though, the agencies still twist and distort and stretch. Read how Congress defined “machine gun” then read about ATF’s actions against forced reset triggers. I believe it’s still bouncing around the courts.
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Not to mention ATFs actions on Short-Barrelled Rifles (SBR) and Suppressors. All sorts of legal arguments to be made about ATF's actions that are an apparent overreach.
 
SoonerAviator said:
Not to mention ATFs actions on Short-Barrelled Rifles (SBR) and Suppressors. All sorts of legal arguments to be made about ATF's actions that are an apparent overreach.
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All because congress didn't do its job and include concrete definitions in their bills. Instead they let the executive branch, i.e., the president make it up. Again, regardless of political side, stripe, or religion, they are all complicit.

I'm with Racerx, congress needs to stop passing omnibus bills and stick to single topics. It's much harder to hide things in a 20 page bill rather than a 2000 page bill, and that's why we get stuck with omnibus bills.
 
Domenick said:
All because congress didn't do its job and include concrete definitions in their bills. Instead they let the executive branch, i.e., the president make it up. Again, regardless of political side, stripe, or religion, they are all complicit.

I'm with Racerx, congress needs to stop passing omnibus bills and stick to single topics. It's much harder to hide things in a 20 page bill rather than a 2000 page bill, and that's why we get stuck with omnibus bills.
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Nope. Congress did indeed write a very clear definition of machine gun. BATFE has ignored it. A forced reset trigger does not fall under Congress’ definition.
 
Domenick said:
I'm with Racerx, congress needs to stop passing omnibus bills and stick to single topics. It's much harder to hide things in a 20 page bill rather than a 2000 page bill, and that's why we get stuck with omnibus bills.
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I mean, sort of?

The main problem is that government, and congress, is about give and take. That stuff that is "hidden", in your words, was a negotiation. So your representative got something for your district and mine got something for mine. I mean, not literally, because I'm a minority in my district so I have no representation (yet still fund the military "at the point of a gun" to the tune of over ten thousand a year out of my pocket), but you get the point. Those deals can't happen in a hundred single topic bills.

The problem, IMO, isn't that things get hidden, it's that the government the founders designed 250 years ago is no longer suitable for a modern economy. But good luck getting anyone to talk about creating a constitution for the next 250 years when like a third of people can't even agree on how to count the ballots in the last election.

Until then, these big bills are the best we're going to be able to do. And, in a way, I hope we keep doing them. Because we're not going to get a fundamentally new constitution without something pretty catastrophic forcing it. And that's probably worse for the country than big spending bills.
 
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172andyou said:
I mean, sort of?

The main problem is that government, and congress, is about give and take. That stuff that is "hidden", in your words, was a negotiation. So your representative got something for your district and mine got something for mine. I mean, not literally, because I'm a minority in my district so I have no representation (yet still fund the military "at the point of a gun" to the tune of over ten thousand a year out of my pocket), but you get the point. Those deals can't happen in a hundred single topic bills.

The problem, IMO, isn't that things get hidden, it's that the government the founders designed 250 years ago is no longer suitable for a modern economy. But good luck getting anyone to talk about creating a constitution for the next 250 years when like a third of people can't even agree on how to count the ballots in the last election.

Until then, these big bills are the best we're going to be able to do. And, in a way, I hope we keep doing them. Because we're not going to get a fundamentally new constitution without something pretty catastrophic forcing it. And that's probably worse for the country than big spending bills.
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I'm not entirely sure why you think that's the case. The gov't we have is not what the founders designed 250 years ago, so maybe that's the problem. Cut the Federal gov't back down to the level it was designed to be and that'd be a good start. The US Constitution isn't that large of a document, so I'm not entirely sure how it impedes a "modern economy".
 
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