Untrue. The way it will work now is that judges will focus on their expertise—interpreting what the laws mean. And agency experts will focus on their expertise—applying that law to specific factual scenarios.
> judges will focus on their expertise—interpreting what the laws mean. And agency experts will focus on their expertise—applying that law to specific factual scenarios.
It's not always that simple: Sometimes, trying to interpret "the law" in the abstract, without deep knowledge of the factual context, is like being a bull in a china shop.
The conservative justices' various obsessions with textualism, originalism, and whatever other flavor of the month comes up, are often unrealistic. Ditching Chevron deference, in the teeth of decades of precedent and congressional approval, is one of those situations.
Granted, your 3d Cir. clerking experience, seeing that aspect of how the sausage is made, does give your view a certain weight. But too many judges need to start remembering that they're hired help, bureaucrats, and when Congress says "we want the agencies we create to figure out what to do, subject to political checks," it's manifestly not on federal judges to say "oh no, you can only do that in a way that lets us judges have the dominant seat at the table."
Judges are Article III, and the need for them laid out explicitly in the text of the Constitution itself.
Chevron deference, and the corpus of administrative law unsubject to judicial review it spawned, most decidedly is not.
That makes judges a bit more of a fixture in the grand scheme of things than all these "agencies" running their own pseudo-courts so that Congress critters can spend their tenure voting one another pay raises, and insider trading among themselves.
>it's manifestly not on federal judges to say "oh no, you can only do that in a way that lets us judges have the dominant seat at the table."
Actually, it manifestly is on the judiciary to say that. If Congress started adding clauses to legislation to the tune of "this law is not subject to judicial review", the judiciary is fully within it's rights as outlined by the Constitution to strike down the law, as the Legislature, by definition, cannot produce a thing with force of law contradicting a limitation placed on it by the Constitution short of another Constitutional Amendment + the requisite ratifications. An unconstitutional law, is no law at all. The issue of constitutionality is purely the realm of the judiciary. No one else. You can change what the Judiciary looks like; but you can't structurally usurp it's powers under the Constitution.
There is a reason Jefferson and Madison were really nervous about how the judiciary ended up playing out in practice though.
> If Congress started adding clauses to legislation to the tune of "this law is not subject to judicial review", the judiciary is fully within it's [sic] rights as outlined by the Constitution to strike down the law
I'm not suggesting that Congress go that far. But don't forget the Exceptions and Regulations Clause in Article III: "In all the other Cases before mentioned [i.e., establishing various grounds of federal-court jurisdiction], the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."
That sounds pretty plenary to me. And Congress has sometimes exercised that power, e.g.:
* Severely limiting and even foreclosing judicial review of certain types of decision by immigration authorities: 8 U.S.C. § 1252(g)
* Ditto for decisions about Social Security: 42 U.S.C. § 405(h)
My vague recollection from law school is that SCOTUS has said that this is OK as long as Congress provides sufficient due process via other means.
> The issue of constitutionality is purely the realm of the judiciary. No one else.
It's astonishing how such an exalted view of the judge's role has taken root and spread like kudzu from its origins in John Marshall's brazenly-bootstrapped argument in Marbury v. Madison (and the All-Writs Act).
I'm not quite following here -- how does stopping executive-branch employees from stepping far outside of their technical expertise into the world of statutory interpretation and constitutional law stop them from continuing to conduct their duties prescribed by law, as explained by the judiciary?
They absolutely can apply the law to specific factual scenarios. They just can't necessarily apply new legal theories to new factual scenarios without getting challenged. The words "apply the law" generally do not mean "invent new legal theories."
Technically they still can do that but they can now be overridden by any judge for any reason. This is an obscene power-grab by our most corrupt and least accountable branch of government.
Show me a greater fundamental misunderstanding of the constitution, which is not an enumerated list of rights, but an enumerated list limiting what the gov't can do. Why is that I only see you post the most specious legal arguments, rayiner? Why is it consistently the case that you misrepresent the basic principles of the US government in the service of facially decrepit arguments?
> Show me a greater fundamental misunderstanding of the constitution, which is not an enumerated list of rights, but an enumerated list limiting what the gov't can do.
You're confusing the federal government with the state governments. State governments are not limited to enumerated powers and can do anything they want.
To overturn a duly-enacted state law, you need to assert a federal constitutional right. You're correct that the constitution "is not an enumerated list of rights." But that means it's also not a source of rights! The rights must come from somewhere else.
That's why the "emanations from penumbras" reasoning is invalid. It treats the Constitution as a source of new rights that can't be found somewhere else.
> Why is that I only see you post the most specious legal arguments, rayiner?
I think most people on here get their legal analysis from political science majors on MSNBC and WaPo.
Where in the First Amendment does it say separation of church and state?
The Ninth Amendment is a savings clause. It says that the Constitution isn't meant to be an exhaustive list of rights. I.e., a right that can be identified somewhere else still exists, even if it's not mentioned in the constitution.
But by the same token, the constitution isn't a source of rights. You can't point to it for some right that isn't already pre-existing.
