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Would you rather have decisions on how to live made by unelected judges or unelected bureaucrats? Supreme Court Associate Justice Clarence Thomas this week failed to get his colleagues to review his own 2005 decision in the Brand X case — which relies on, and expands, the famous 1984 Chevron decision granting deference to federal agencies to interpret statutes when Congress is vague. Justice Thomas fears these precendents have become unconstitional grants of power to faceless bureaucrats. In the case that failed to get a writ of certiorari, IRS bureacrats decided that Howard and Karen Baldwin wouldn’t get the $168,000 in overpaid taxes due them.
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24 replies on “Unelected Judges or Unelected Bureaucrats: Which Should Interpret the Law?”
I was a little surprised Bill did not make a stronger point that courts do make HUGE mistakes and that precedent should not be sacrosanct. Important but should not enough to prohibit the correction of a mistake. Case in point? Dred Scott vs Sanford.
As Bill is talking I wrote down these note/ideas:
A judge is like a higher order intelligence, making reasoned, rational decisions, an agency is like a simple cellular organization (just with lots of cells) working more on response to stimulii.
or… an agency is like “the editorial page” where opinions are published when they all want to say it but don’t want anyone to call for someone to get fired.
Not knowing anything more than Scott reported here about this particular case, there are a couple of interesting historical bits which put this in context:
1. Justice Scalia’s originalism was strongly tempered by his deference to both court precedence and to agency rulings. IIRC he was the author of the Chevron decision, from which I believe Justice Thomas dissented (perhaps only in part).
2. I’d guess (do not know) that the fourth person Thomas could not bring along was Chief Justice Roberts, who is highly concerned with the Court’s “institutional integrity.” He’s even more deferential than Scalia was (see the Obamacare decision).
3. This is not the first time an invitation to overturn Chevron has come up in the last few years. It won’t be the last. I agree with Alan’s comment below also that a factually stronger case is probably worth waiting for.
How about we follow the same principle as contract law. When a contract is vague the decision goes in favor of the party that didn’t write the contract. After a law is determined to be vague, judges don’t get to set a precedent on interpretation and the agency can write all the subsequent regulations they like but if it gets taken to court they lose, instantly, before any arguments are even heard.
Well at least this would force agencies to write cohesive language into regulations or risk having them be meaningless.
It is entirely possible that the Court did not accept this case because the facts were too weak to overturn precedent. It boils down to an argument over when a refund request was mailed to the IRS or whether the request was ever received. Weak.
In order to overturn Chevron (a poor decision) the Court may want to wait for a case where facts are more compelling.
Justice Thomas’ opinion is best seen as an alert that Chevron is due for a reappraisal. It would not be the first time that a dissent or question at argument is a signal.
Here’s hoping that’s the situation. Thanks, Alan.
FINGERS CROSSED!
The underlying problem is that Congress is too lazy, incompetent, and/or overburdened to do their job properly.
I think that we are all agreed that the originalist ideal of a limited central government has long passed. Time of death probably the 1820s when the Federal government got involved with internal improvements, usurping the role of the States. This was an understandable and defensible position but over the years it has become a monster.
Today the Federal government regulates pretty much everything. Consider the most intelligent, dedicated,wise, and honest Congressman (does he exist?). Given the wide range of issues that he must deal with, as well as the secondary concerns of fundraising and having a private life, no one can do the job. Ideology is irrelevant here. NO ONE is up to this impossible task. Today’s solution?
Write generally incoherent, inconsistent legislation with an order that an administrative body write the rules. The legislator gets the credit for “solving a problem” and the administrative state gets another area to muck around in.
Until the Feds decide to obey the Constitution and admit that they might be able to handle a few issues well (e.g. defense, foreign policy, budget) this problem will persist and a reversal of Chevron will only trim the problem around its edges.
The basic point is that a collective cannot think or decide. It is individuals who think and decide. The important question is who should to the thinking and deciding for whom? My choice is that each does their own thinking and choosing while respecting the same for every other individual.
Respectfully, the citizens of the USA are the true collective; and we can think and decide. When we delegate our civic duties to those who you call the “Collective”, a group whose interests and prejudices are far different from ours, problems arise.
You make my point exactly. It is who should think and decide for whom? A collective cannot do it. However, those who were allowed to take over the reins of power and control over others should be instructed, quite forcefully, that such a thing is NOT their job.
Individualism, not collectivism is my credo. Unfortunately, it is the content of the collective character that determines the path of our nation.
Don’t give up so easily. Collectivism always fails. The challenge is not to be collateral damage while the collective is on its way out.
I want another choice. How about that I decide for MY life and you decide for YOUR life? The only limitation being that neither you nor I initiate physical force to violate the life of the other. Everything done jointly must be totally uncoerced free choice agreement. If no agreement, each go their separate ways.
I like it Bill. The Federal Bureaucracy can be best understood by watching John Carpenter’s The Thing.
Outlaw government union and repeal the Civil Service act. The President should be able to fire anyone in the executive branch w/ 2 weeks notice. Those folks should have as much job security as the rest of us.
I never liked the idea of government unions, they seem to go against “serving” and then of course you have people organized against the very government (the people) they are meant to serve – counter intuitive… Government workers allegiance should be to the people they are purporting to serve (citizens) not a union.
I work at the IRS, and you have a bad manager, you know the need for a union. Had one that had blatent favoritism. Others would deny bathroom breaks. Most are good. My current one is great.
That seems backwards to me. That problem should be able to be solved by an organizational structure that enables people being mistreated to make a complaint elsewhere (not to the person doing the abusing) and get the problem solved (bad manager corrected or fired). A union would have to defend the manager who’s denying bathroom breaks from being fired. (See, e.g., NYC’s rooms full of un-fire-able teachers who are paid to do nothing all day.)
Nope. At the IRS, managers are not members of the union
My ideas are the same as Laura’s. There should be no need for a union with the civil service protections, else why do we have them? Basic business law and workplace rules and regs always get in the way of doing anything, they ought to be useful for ousting a bad manager or bad employee.
As always, good job of taking some dry, nerdy material and making it interesting
Thanks, Bob.
That is a rare skill.
Your comment about the congressional staffs is spot on.