Liberty Law Blog

A World Without Chevron

by Mike Rappaport / 0 Comments

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Let me complete my set of posts on Chevron by explaining what legal doctrine would look like without Chevron.  Chevron was justified in part based on the view that the prior doctrine was a mess because it left no guidance as to whether deference would be given to an administrative agency in any specific case.  That Chevron has turned into a doctrine with tremendous uncertainty is both ironic and another reason not to like it.

There are two possible doctrines that would replace Chevron.  The first is simply not to confer deference on an agency unless there is a clear indication from Congress that such deference was intended.  Thus, if Congress specifically provided for such deference then the courts should confer it.

An example of this comes from the Fair Labor Standards Act, which exempted “outside salesman” from the overtime provisions of the Act.  Significantly, Congress did not definte the term outside salesman, but delegated authority to the Department of Labor to issue regulations “from time to time” to “define and delimit” the term.  Congress here was clearly allowing the agency to determine the scope of the term.  But in the absent of such an explicit provision one would not infer any deference for the agency. Continue Reading →

A Constitution for All Seasons

by Greg Weiner / 1 Comment

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If Senators John McCain, Lindsey Graham and Kelly Ayotte as well as Rep. Peter King are unwilling to grant Dzhokhar Tsarnaev a presumption of innocence in the Boston marathon bombing, perhaps they might be willing to start the debate surrounding the terms of his detention with a presumption in favor of the Constitution instead: namely, that our founding document, cumbersome protections and all, is sturdy enough to protect the nation even in cases of the most heinous and outrageous acts and the gravest enduring dangers.  Continue Reading →

The Nontextual and Made Up Chevron Doctrine

by Mike Rappaport / 2 Comments

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In my last post, I discussed how the Chevron doctrine – which grants administrative agencies the power to choose any reasonable interpretation of statutes that they administer – allows agencies additional legislative power and therefore exacerbates the combining of legislative and executive powers of the administrative state.  Here, I want to explain why the doctrine is made up and nontextual — and therefore should never have been endorsed by Justice Scalia.

As the Court freely admits, the Chevron doctrine does not emanate from any statutory text.  It is an inference – I would say an assumption – that the Court makes that any ambiguous language was intended to delegate to the agencies.  But as the Chevron case itself admitted, this assumption is not necessarily grounded in Congress’s intent.  When Congress uses ambiguous language, there are many reasons why it might have done so other than intended to delegate the power to resolve that ambiguity to an administrative agency.

Textually, nothing in these statutes says that the agencies should resolve the ambiguity.  Instead, there is an applicable text that speaks to the issue – and says that there should be no deference to the agency.  The Administrative Procedure Act, passed in 1946, states that a reviewing court should “decide all relevant questions of law.”  It does not state that it should leave those questions to agencies. Continue Reading →

When Compassion Reigns

by Theodore Dalrymple / 5 Comments

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The picture of the little boy killed by one of the bombs in Boston has gone round the world and is particularly poignant. How could anyone have done such a thing to so innocent a child? This is a natural emotional response.

But is it a morally appropriate response, however natural it might be? I am not sure that it is; indeed, it could almost be, indirectly and unintentionally, of assistance or comfort to terrorists. Continue Reading →

Standing with Erasmus, Undaunted

by Richard Reinsch / 4 Comments

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It all started during a golf outing on the plush courses of northern Maine (summer, I presume) among Bowdoin president Barry Mills and Thomas Klingenstein, Chairman of the Board of Directors of the Claremont Institute, that I guess Mills would like to have back. That day at the links, or rather Mills’ public recollection of it, launched a National Association of Scholars’ 363 page study of the curriculum and education offerings of Bowdoin College. Continue Reading →

Friday Roundup, April 19

by Richard Reinsch / 0 Comments

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None of Britain’s future options are easy, argues Charter. Without declaring a preference for any one of them, he leaves it clear that, in his opinion, Britain must shortly leave the EU, but that there will be life after its doing so, albeit probably a slightly less prosperous one than it might otherwise have enjoyed had it remained a member.

  • The real costs of college group-think: Judith Grossman, an attorney in New York, writes in the Wall Street Journal this week about the show trial her son endured on campus because of a bogus sexual assault allegation by a former girlfriend that allegedly happened years earlier. Her son was presented with no evidence, no specific allegations, or allowed to confront his accuser or other “witnesses.” The standard of guilt for this crime owing to the Obama Department of Education’s Office of Civil Rights is preponderance of the evidence or 50% + a whisper. Yes, you read that right. Why are college panels trying these cases to begin with? DOE tied the implementation of these changes for conviction (50% and a whiff) to a college campus’ continued receipt of federal funding. Practical. Grossman’s son had a lawyer mother with means who protected him. It goes without saying that many others will not be so fortunate. Harry Lewis and Jane Shaw have a similar report @UNC. Apparently, it’s no good for the accusers either.

Beyond making clear that “mere corporate presence” in the United States will not suffice, the Chief Justice’s opinion observes that “even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.” That observation (and its supporting citation) ought to signal that there will not be ATS jurisdiction over claims based predominantly on, or focused on, foreign conduct, but future cases will have to sort out the precise lines.

  • New Fed Soc operation: Executive Branch Project. This is greatly needed. I look forward to many excellent contributions.

Will on DeMuth

by Michael S. Greve / 0 Comments

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The one and only George Will has a Washington Post column today on the one and only Chris DeMuth’s speech on “Executive Government and Bankrupt Government,” delivered at GMU’s Transatlantic Law Forum this past February. I’ve blogged and linked to the talk here. Go read if you haven’t already. You now have it on Mr. Will’s authority that this is big—the deepest, most sober reflection on the state of our politics you’ll find.

In the printed Post, George Will’s column appears underneath a rare E.J. Dionne column that’s not only not inane or infuriating but right on, and moving. The Boston Marathon runs up Commonwealth Avenue (“Heartbreak Hill”) past Boston College, where I’ve taught and where my daughter goes to school. This one hit close to home, and I thank Mr. Dionne for his tribute to one of America’s greatest, gutsiest cities.

The Problematic Chevron Doctrine

by Mike Rappaport / 1 Comment

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In my earlier post, I discussed how the Supreme Court’s failure to enforce the nondelegation doctrine has allowed legislative and executive power to be combined.  Here I want to discuss another way in which the Supreme Court has not merely allowed legislative and executive power to be combined, but has actually encouraged the process; and done so probably against Congress’s will.

Under the Chevron doctrine, the Courts permit administrative agencies to adopt any reasonable interpretation of a statute that the agency administers.  (This is a simpler formulation than the Court normally gives, but it is accurate and will do for this post.)  The doctrine provides the agencies of the executive branch with more power over the implementation of the laws than they would otherwise have.  The agencies are given authority to choose any reasonable interpretation of the statute that they desire.  Thus, more policymaking discretion is given to the agencies.  The agencies therefore enjoy more legislative power in that they get to decide the meaning of the legislation that Congress enacted.  (Another way to view the doctrine is that it confers judicial power on the agencies.  While I don’t pursue that view here, that is hardly better.)

Significantly, the Chevron doctrine is not a command of the Congress.  The Court has largely made the whole thing up, so that agencies receive more of a delegation than Congress appears to have intended.  If the Congress had actually delegated the authority to the agencies, then the Court could at least claim to be following Congress’s will.  (For those who doubt my claim that Congress did not delegate this power, see my next post.) Continue Reading →

Gun Control Advocates are Playing Chess

by Nicholas J. Johnson / 31 Comments

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The President was on television recently stumping again for his gun control agenda.  He spoke in his favored repetitive mode except for one sort of new flourish, which was the acknowledgment that there are good people on both sides, and we all need to walk a bit in each other’s shoes. This advice actually might illuminate our way through the coming teeth gnashing-debate about the Senate’s vote on expanded background checks, among other things. Continue Reading →

Alien Torts

by Michael S. Greve / 2 Comments

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The Supreme Court has just released its decision and opinion(s) in Kiobel v. Royal Dutch Petroleum. I haven’t read or analyzed this carefully, but here’s the gist of it:

Kiobel involves the hotly contested question of whether the Alien Tort Statute, 28 U.S.C. 1350, permits courts to recognize a cause of action for torts in violation of customary international law—and if so, what causes. On its face, the ancient statute (part of the 1789 Judiciary Act) is purely jurisdictional: it says that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” That tells you where to sue and who may sue, but it doesn’t say what torts “count.” In Sosa v. Alvarez Machain, 542 U.S. 692 (2004), the Supreme Court held that aliens can sue over torts that are like—in character, specificity, and international consensus—the  “violations of the law of nations” recognized in 1789: violations of safe conduct, infringement of the rights of ambassadors, and piracy.  What does that mean, though? Continue Reading →

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