The Earth Shook a Little

[jlunseth]

I write because in some recent threads, the “Chevron deference” doctrine has been the subject of discussion. Under the doctrine, which stemmed from a case 40 years ago, the Courts gave deference to an agency’s own rules and interpretations of its rules. In other words, a Federal agency could not only promulgate a rule, it could then decide what the rule meant and how it was to be applied, and the Court’s were not to interfere with that interpretation. This resulted in what some viewed as abuses of the administrative power. On Thursday and Friday of this week the Supreme Court decided two cases that are likely to dramatically change how Federal agencies (including the FAA) operate. In Loper Bright Enterprises v. Raimondo the Court expressly overruled the original Chevron case. “Chevron deference” is gone. The day before, in SEC v. Jarkesy, the Court determined that there is a right to jury trial in instances where an agency seeks to impose a civil financial penalty for violations of its rules. Previously, an agency could decide whether to proceed against a defendant in Court, where the rules of discovery and rules of evidence apply, or before an administrative judge where they do not.

The effect of Loper is that an agency is no longer the sole decider of what its governing statute or its rules mean. This has two effects. First, Federal agencies unfortunately have used their authority under Chevron to pass rules expanding their own authority beyond the scope of the statute under which that authority was granted by Congress. As an example (I am deliberately staying away from aviation-type examples), for many years the EPA asserted the right to regulate farmers’ fields. Their jurisdiction extends to “navigable” waterways, and they interpreted “navigable” to include areas where water ponds in the spring. A long battle was fought over this with Chevron very much at play, in other words, the agency asserted it was the sole decider of the extent of its power to regulate. Second, agencies will be limited in their ability to apply their own rules and regulations simply by reinterpreting a rule.

Under Jarkesy, enforcement proceedings in which an agency seeks a monetary penalty will be required to proceed in Court where the defendant will have the ability to defend himself, and have the matter decided by a jury of his peers. In Jarkesy, the SCt distinguished between enforcement proceedings the purpose of which is solely to restore the status quo, from those where a monetary penalty is sought. So it remains to be seen whether Jarkesy will apply, for example, to proceedings for the suspension or revocation of a license as opposed to a monetary penalty of some sort.

These cases - and we may see more aimed at limiting the power of the administrative state - will unquestionably have an affect on how any Federal agency, including the FAA, operates. Personally, I have had nothing but good experiences with the FAA, and as Federal agencies go, it has always appeared to me to want to serve and cooperate rather than mandate and restrict. But things will change.

In practice, and from long experience in the legal field, I can tell you that it will take some time for these two decisions to have an effect. When major precedents come down there is always some resistance in the lower courts, which find ways around the new precedent. For example, in Loper the SCt said that the Federal courts may, in deciding what a statute means, consider the agencies interpretation in light of the expertise of the agency in the particular field.  So in lower courts sympathetic to an agency, the court will simply use that rule to adopt the agency’s interpretation, right or wrong, and it will up to the appellate courts to straighten it out. There will also be quite a few cases in the lower courts trying to sort out what Loper and Jarkesy mean. So don’t anyone think they can now go fly under bridges.

[T. Peterson]

8 hours ago, jlunseth said:

I write because in some recent threads, the “Chevron deference” doctrine has been the subject of discussion. Under the doctrine, which stemmed from a case 40 years ago, the Courts gave deference to an agency’s own rules and interpretations of its rules. In other words, a Federal agency could not only promulgate a rule, it could then decide what the rule meant and how it was to be applied, and the Court’s were not to interfere with that interpretation. This resulted in what some viewed as abuses of the administrative power. On Thursday and Friday of this week the Supreme Court decided two cases that are likely to dramatically change how Federal agencies (including the FAA) operate. In Loper Bright Enterprises v. Raimondo the Court expressly overruled the original Chevron case. “Chevron deference” is gone. The day before, in SEC v. Jarkesy, the Court determined that there is a right to jury trial in instances where an agency seeks to impose a civil financial penalty for violations of its rules. Previously, an agency could decide whether to proceed against a defendant in Court, where the rules of discovery and rules of evidence apply, or before an administrative judge where they do not.

The effect of Loper is that an agency is no longer the sole decider of what its governing statute or its rules mean. This has two effects. First, Federal agencies unfortunately have used their authority under Chevron to pass rules expanding their own authority beyond the scope of the statute under which that authority was granted by Congress. As an example (I am deliberately staying away from aviation-type examples), for many years the EPA asserted the right to regulate farmers’ fields. Their jurisdiction extends to “navigable” waterways, and they interpreted “navigable” to include areas where water ponds in the spring. A long battle was fought over this with Chevron very much at play, in other words, the agency asserted it was the sole decider of the extent of its power to regulate. Second, agencies will be limited in their ability to apply their own rules and regulations simply by reinterpreting a rule.

Under Jarkesy, enforcement proceedings in which an agency seeks a monetary penalty will be required to proceed in Court where the defendant will have the ability to defend himself, and have the matter decided by a jury of his peers. In Jarkesy, the SCt distinguished between enforcement proceedings the purpose of which is solely to restore the status quo, from those where a monetary penalty is sought. So it remains to be seen whether Jarkesy will apply, for example, to proceedings for the suspension or revocation of a license as opposed to a monetary penalty of some sort.

These cases - and we may see more aimed at limiting the power of the administrative state - will unquestionably have an affect on how any Federal agency, including the FAA, operates. Personally, I have had nothing but good experiences with the FAA, and as Federal agencies go, it has always appeared to me to want to serve and cooperate rather than mandate and restrict. But things will change.

In practice, and from long experience in the legal field, I can tell you that it will take some time for these two decisions to have an effect. When major precedents come down there is always some resistance in the lower courts, which find ways around the new precedent. For example, in Loper the SCt said that the Federal courts may, in deciding what a statute means, consider the agencies interpretation in light of the expertise of the agency in the particular field.  So in lower courts sympathetic to an agency, the court will simply use that rule to adopt the agency’s interpretation, right or wrong, and it will up to the appellate courts to straighten it out. There will also be quite a few cases in the lower courts trying to sort out what Loper and Jarkesy mean. So don’t anyone think they can now go fly under bridges.

Anything that works to restrain bureaucrats even just a little bit encourages me just a little bit.

[Rick Junkin]

Russ Niles’ perspective on AvWeb. The responses to this issue are a great example of the perennial battle between advocates for big government and advocates for limited government.

https://www.avweb.com/insider/court-clogging-supreme-court-action-a-drag-on-progress/?MailingID=FLY240701003&utm_campaign=avwebflash&utm_medium=newsletter&oly_enc_id=7809D4413378B7B

EDIT: For the record, I am NOT on the big government side.

[1980Mooney]

3 hours ago, Rick Junkin said:

Russ Niles’ perspective on AvWeb. The responses to this issue are a great example of the perennial battle between advocates for big government and advocates for limited government.

https://www.avweb.com/insider/court-clogging-supreme-court-action-a-drag-on-progress/?MailingID=FLY240701003&utm_campaign=avwebflash&utm_medium=newsletter&oly_enc_id=7809D4413378B7B

EDIT: For the record, I am NOT on the big government side.

The irony in all this is that the only reason that we have the freedom to fly at all in this country, to fly over private property, to go almost anywhere we want at any time we want is because of the large reach of the Federal Government. Until about 100 years ago, the Ad Coelum Maxim had prevailed for thousands of years regarding land ownership.  If you owned the land, you owned everything from "Heaven to Hell".  

The 1926 Air Commerce Act took away the airspace rights of land owners.  It determined a right of freedom of navigation superior to the right of the owner of the subjacent land to use the airspace. And how were the land owners compensated for this?...NADA  To add insult to injury, land owners wind up paying taxes in one form or another that in part funds the framework of aviation through their airspace.  Some would call that theft or government over-reach....but not pilot/plane owners.

Now the Govt could have limited flight to victor flyways and compensated the landowners for the loss of airspace rights  (like building a freeway) but no. So in order to allow this free-for-all flying right over private property, there had to be rules and government oversight....hence  bureaucracy.

We seem to want it both ways. Government over-reach of land owners is fine if it allows us to fly over private property 24/7 but we belly ache about Government "over-reach", bureaucracy and rules related to our freedom to fly.  We chafe at cities limiting flight noise.  We are irate if a city, county or private airport owner repurposes an airport into something better serves and has higher value to its owner or tax paying citizens.

We as GA pilot/owners are not paying our way either.  There is no way the meager fuel taxes that we pay fund our share of aviation.  City, county and state taxpayers fund the losses of the  thousands of airports that are negative cash flowing.  Federal funds from taxpayers pay for much of the infrastructure installation or improvement via grants.  And commercial aviation knows that GA is not paying for ATC.

I suspect, as government spending deficits continue, the subject of GA ATC User Fees and higher airport fees will come up again in the near future.

Other countries are less generous to GA pilot/owners than for us here in the US.  We have more freedoms and lower costs.  There has to be a balance yet we never seem to find one that everyone can be happy with.

Edited July 1 by 1980Mooney

[Rick Junkin]

Indeed, there is much irony in most discussions of topics regarding the bureaucracy and its merit or harm. Eminent domain comes to mind as an easily inflamed topic, to your point about airspace. The important thing is that we communicate well and in good faith from both sides of an issue and arrive at a mutually acceptable resolution, whether the resolution is palatable from both sides, or even either side, or not. We haven't been very skilled at that in recent years. In some cases we have to simply agree to disagree.

My interest in the topic at hand is the throttling of executive agencies that have been operating as if their regulations carry the weight of law without any checks and balances or opportunity for challenges that are adjudicated from outside the agency. The latest supreme court ruling changes that.

I'm not a lawyer so am happy to hear from the knowledgable folks here and become more educated.

[1980Mooney]

51 minutes ago, Rick Junkin said:

Yes, there is much irony in most discussions of topics regarding the bureuocracy and its merit or harm. Eminent domain comes to mind as an easily inflamed topic, to your point about airspace. The important thing is that we communicate well and in good faith from both sides of an issue and arrive at a mutually acceptable resolution, whether the resolution is palatable from both sides, or even either side, or not. We haven't been very skilled at that in recent years. In some cases we have to simply agree to disagree.

My interest in the topic at hand is the throttling of executive agencies that have been operating as if their regulations carry the weight of law without any checks and balances or opportunity for challenges that are adjudicated from outside the agency. The latest supreme court ruling changes that.

I'm not a lawyer so am happy to hear from the knowledgable folks here and become more educated.

Too bad you are not a lawyer.  This is a godsend for lawyers...like Christmas and your birthday rolled into one. Seriously.  This moves many decisions/rulings out of the Executive agencies and into the Judicial agencies. More expensive lawsuits at the Federal level requiring more expensive lawyers.  More Govt spending at the Federal level on trials and court cases, more spending on judicial staff.  And at the FAA more lawyers and more spending on legal cases. Next they will need larger budgets, more fees and higher taxes to pay for all this!

I bet the cost of pilot legal protection plans goes up now.  And since the hurdles and costs of enforcement actions will likely now be higher, I also bet the fines set by the FAA escalate. 

I could be completely wrong but I do know that legal costs for pilot/owners won't be going down as a result of this ruling.

BTW - I wonder how the Supreme Court sets aside clear conflicts of interest when they make rulings that create more employment and wealth for all their fellow Judge and former coworker attorney buddies.....

Edited July 1 by 1980Mooney

[Rick Junkin]

9 minutes ago, 1980Mooney said:

Too bad you are not a lawyer.  This is a godsend for lawyers...like Christmas and your birthday rolled into one. Seriously.  This moves many decisions/rulings out of the Executive agencies and into the Judicial agencies. More expensive lawsuits at the Federal level requiring more expensive lawyers.  More Govt spending at the Federal level on trials and court cases, more spending on judicial staff.  And at the FAA more lawyers and more spending on legal cases. Next they will need larger budgets, more fees and higher taxes to pay for all this!

I bet the cost of pilot legal protection plans goes up now.  And since the hurdles and costs of enforcement actions will likely now be higher, I also bet the fines set by the FAA escalate. 

I could be completely wrong but I do know that legal costs for pilot/owners won't be going down as a result of this ruling.

BTW - I wonder how the Supreme Court sets aside clear conflicts of interest when they make rulings that create more employment and wealth for all their fellow Judge and former coworker attorney buddies.....

I hold out some hope that this ruling will impact the executive agencies in a positive way (from the citizen’s standpoint) that dissuades them from business as usual since they’ll have the burden of proof, justification and judicial oversight of the way they craft and apply regulation. It is a long-sighted hope that will take decades to undo decades of autocratic agency culture.

As for the costs, if it weren’t for lawyers I wouldn’t need one. Nothing new there. That’s another windmill for another day.

[1980Mooney]

48 minutes ago, Rick Junkin said:

I hold out some hope that this ruling will impact the executive agencies in a positive way (from the citizen’s standpoint) that dissuades them from business as usual since they’ll have the burden of proof, justification and judicial oversight of the way they craft and apply regulation. It is a long-sighted hope that will take decades to undo decades of autocratic agency culture.

As for the costs, if it weren’t for lawyers I wouldn’t need one. Nothing new there. That’s another windmill for another day.

This seems like a big win for cities that are at war with General Aviation or aviation in general.  They have been using noise regulations to try to limit or alter flight paths and limit times of operation with curfews. 

https://www.aspentimes.com/news/faa-tells-pitkin-county-and-airport-that-restrictions-on-safety-and-access-are-not-allowed/

https://www.scottsdale.org/city_news/scottsdale-faa-still-at-war-over-flight-paths/article_1e0abb82-1298-11ed-97e2-afb6da21b2e0.html

https://www.malibucity.org/DocumentCenter/View/32569/City_Malibu_Comment_Letter_FAA_Noise_Policy_Review_9-29-2023?bidId=

Now, if cities or counties don't like the "autocratic" answer they get from the FAA, they can go to court for "judicial oversight" to try to get the outcome that they hope for.  I expect the City of Malibu, Aspen and Scottsdale to be at the front of the line on the court docket.  It is like 2 bites at the apple for these cities.  Those three cities are pretty well heeled and I suspect that they will throw enough lawyers at it to exhaust all options/angles, wear down and sway the "judicial oversight" in their direction.

And if they can do it, others will follow....

Be careful for what you wish.  The earth may not shake the way that you expected.

Edited July 1 by 1980Mooney

[N201MKTurbo]

It looks like Scottsdale's complaints have been adjudicated. I'm not sure how this is going to affect their issue.

[Shadrach]

4 hours ago, 1980Mooney said:

This seems like a big win for cities that are at war with General Aviation or aviation in general.  They have been using noise regulations to try to limit or alter flight paths and limit times of operation with curfews. 

https://www.aspentimes.com/news/faa-tells-pitkin-county-and-airport-that-restrictions-on-safety-and-access-are-not-allowed/

https://www.scottsdale.org/city_news/scottsdale-faa-still-at-war-over-flight-paths/article_1e0abb82-1298-11ed-97e2-afb6da21b2e0.html

https://www.malibucity.org/DocumentCenter/View/32569/City_Malibu_Comment_Letter_FAA_Noise_Policy_Review_9-29-2023?bidId=

Now, if cities or counties don't like the "autocratic" answer they get from the FAA, they can go to court for "judicial oversight" to try to get the outcome that they hope for.  I expect the City of Malibu, Aspen and Scottsdale to be at the front of the line on the court docket.  It is like 2 bites at the apple for these cities.  Those three cities are pretty well heeled and I suspect that they will throw enough lawyers at it to exhaust all options/angles, wear down and sway the "judicial oversight" in their direction.

And if they can do it, others will follow....

Be careful for what you wish.  The earth may not shake the way that you expected.

Interesting way of reading two rulings that:

1) Limit the ability of federal agencies’ to reinterpret/expand a federal statue beyond what the statute actually says.

And

2) Allow for a jury trial in instances where a federal agency seeks to impose a civil financial penalty for a violation.

Perhaps you’re a lawyer… It takes some creative interpretation to view these two rulings as a way for local governments to rewrite statutes in the local courts.

Can you expand on how you came to this conclusion? Removing the ability of federal agencies’ to reinterpret and expand statutes does not mean that the courts will now have the right to do the same. The judiciary is not supposed to be in the business of legislation and neither are federal agencies. I’m glad that the Supreme Court has put a stop to the abuses of the latter.

[jlunseth]

@1980Mooney. There are several Federal laws that apply to noise abatement. Most importantly, the Airport Noise and Capacity Act (ANCA) makes clear that jurisdiction over noise abatement is exclusively Federal. The doctrine is called “Federal pre-emption.” There is case law holding that the authority over noise abatement is exclusively Federal, in other words, local (meaning state, county, city, etc.) authorities may not attempt to legislate or control noise abatement. That said, there are far too many “voluntary” programs, etc. It would be a good issue to take up to the SCt. at this point.

We have a “voluntary” program at my home base, KFCM. I fly often for Angel Flight. We don’t get to choose when the patients need us. 

[GeeBee]

Congress needs to do its job and thus be accountable for its actions rather than creating broad mandates with little definition. In doing so, influence pedaling will actually decrease because you won't have this interest or that interest trying to get help with government agencies who have over reached.

[T. Peterson]

1 hour ago, Shadrach said:

Interesting way of reading two rulings that:

1) Limit the ability of federal agencies’ to reinterpret/expand a federal statue beyond what the statute actually says.

And

2) Allows for a jury trial in instances where a federal agency seeks to impose a civil financial penalty for a violation.

Perhaps you’re a lawyer… It takes some creative interpretation to view these two rulings as a way for local governments to rewrite statutes in the local courts.

Can you expand on how you came to this conclusion? Removing the ability of federal agencies’ to reinterpret and expand statutes does not mean that the courts will now have the right to do the same. The judiciary is not supposed to be in the business of legislation and neither are federal agencies. I’m glad that the Supreme Court has put a stop to the abuses of the latter.

Well written and right on the money!!

[Schllc]

If anyone has ever had to do business with a permitting agency at any local or state level in the last 20 years there is no way this is a bad decision. 
politicians are generally lazy people and when an issue arises they kick it to staff to recommend how to handle, they don’t do any homework or research, they just do what staff says. 
Staff ALWAYS decides based on what’s best for the bureaucracy. It’s universal and if you don’t agree, it’s only because you haven’t had to battle with them. 
the only thing worse than permitting is the fire departments which is another whole discussion. 

this is going to be abusive bureaucracies worst nightmare because they are terrified of only one thing, litigation. 
The next reform should be to make them personally liable and required to pay legal fees if they lose  

The Supreme Court ruled so apparently that is the correct way to interpret the law. 

[T. Peterson]

22 minutes ago, GeeBee said:

Congress needs to do its job and thus be accountable for its actions rather than creating broad mandates with little definition. In doing so, influence pedaling will actually decrease because you won't have this interest or that interest trying to get help with government agencies who have over reached.

Your comment is also right on target. Cowardly Congressmen shift their burden of responsibility to various bureaucracies and sub bureaucracies to avoid the messy job of real legislation. This allows them to dodge consequences by blaming some unknown and faceless bureaucracy when the citizen complains of an onerous and/or ridiculous ruling.

[Shadrach]

26 minutes ago, GeeBee said:

Congress needs to do its job and thus be accountable for its actions rather than creating broad mandates with little definition. In doing so, influence pedaling will actually decrease because you won't have this interest or that interest trying to get help with government agencies who have over reached.

Exactly! Legislation should be purpose driven and crafted with sufficient specificity so as to leave minimal room for broad interpretations.

[1980Mooney]

10 hours ago, Shadrach said:

Perhaps you’re a lawyer… It takes some creative interpretation to view these two rulings as a way for local governments to rewrite statutes in the local courts.

Can you expand on how you came to this conclusion? Removing the ability of federal agencies’ to reinterpret and expand statutes does not mean that the courts will now have the right to do the same. The judiciary is not supposed to be in the business of legislation and neither are federal agencies. I’m glad that the Supreme Court has put a stop to the abuses of the latter.

Of course this will put the judiciary in the business of legislation because they will now be interpreting the intent of legislation whenever there is a dispute of intent.  The whole purpose of the Chevron Doctrine (or Deference) was to keep the judiciary out of that role. In simple terms the Court decided in 1984 that judges should defer to federal agencies in interpreting ambiguous parts of statutes.  That has now changed.  The Court now requires lower federal courts to uphold an agency's statutory interpretation only if the court is persuaded that it is the best interpretation of the law.  That opens the door to anyone wanting to challenge any agency statutory interpretation. The judiciary now has to listen to any dispute or challenge and rule upon by rendering their interpretation of the intent of legislation.  The judiciary becomes what I call the "King makers".  They can bless the agency interpretation or they can strike it down.   If they strike it down, they will render an opinion why.  That will form the basis for the next agency statutory interpretation.  This becomes an inefficient two step" trial and error" approach to form statutory interpretation.  Of course there will be a lot of judge shopping along the way. 

Now take the whole noise issue.  The Journal of Air Law and Commerce states

• The Airport Noise and Capacity Act (ANCA) is significant because it shifts authority for noise abatement away from local governments and airport proprietors and grants the Federal Aviation Administration (FAA) authority on all noise restrictions on aircraft.  Airport operators, airlines, and citizens groups all hope this shift toward a national solution will lead to less litigation.
• .Some will say that there is no ambiguity in ANCA.  I say BS - it mainly specifically refers to Stage 3 aircraft.  The FAA has made many statutory interpretations of ANCA which I believe will now be open to challenge by cities or others 

Not a lawyer but spent a lot of my career finding ambiguity in oilfield service contracts.and merger agreements, Two people can read and interpret even the most carefully written contract differently.  Look at Exxon and Hess.  They are currently arguing in arbitration over the intent of "right of first refusal" on a Guyana project.  If Exxon prevails it will tank Hess's $53 bil. sale to Chevron.  Both sides of businessmen and lawyers think that their interpretation of the contract intent is unambiguously correct.  

Legislation is just another form of a legal contract in my opinion.  Admittedly some are very poorly written.  I tend to agree that this will clog the judiciary as they play a bigger role in legislative interpretation of intent.

Edited July 2 by 1980Mooney

[GeeBee]

5 hours ago, 1980Mooney said:

Of course this will put the judiciary in the business of legislation because they will now be interpreting the intent of legislation whenever there is a dispute of intent.  The whole purpose of the Chevron Doctrine (or Deference) was to keep the judiciary out of that role. In simple terms the Court decided in 1984 that judges should defer to federal agencies in interpreting ambiguous parts of statutes.  That has now changed.  The Court now requires lower federal courts to uphold an agency's statutory interpretation only if the court is persuaded that it is the best interpretation of the law.  That opens the door to anyone wanting to challenge any agency statutory interpretation. The judiciary now has to listen to any dispute or challenge and rule upon by rendering their interpretation of the intent of legislation.  The judiciary becomes what I call the "King makers".  They can bless the agency interpretation or they can strike it down.   If they strike it down, they will render an opinion why.  That will form the basis for the next agency statutory interpretation.  This becomes an inefficient two step" trial and error" approach to form statutory interpretation.  Of course there will be a lot of judge shopping along the way. 

Now take the whole noise issue.  The Journal of Air Law and Commerce states

• The Airport Noise and Capacity Act (ANCA) is significant because it shifts authority for noise abatement away from local governments and airport proprietors and grants the Federal Aviation Administration (FAA) authority on all noise restrictions on aircraft.  Airport operators, airlines, and citizens groups all hope this shift toward a national solution will lead to less litigation.
• .Some will say that there is no ambiguity in ANCA.  I say BS - it mainly specifically refers to Stage 3 aircraft.  The FAA has made many statutory interpretations of ANCA which I believe will now be open to challenge by cities or others 

Not a lawyer but spent a lot of my career finding ambiguity in oilfield service contracts.and merger agreements, Two people can read and interpret even the most carefully written contract differently.  Look at Exxon and Hess.  They are currently arguing in arbitration over the intent of "right of first refusal" on a Guyana project.  If Exxon prevails it will tank Hess's $53 bil. sale to Chevron.  Both sides of businessmen and lawyers think that their interpretation of the contract intent is unambiguously correct.  

Legislation is just another form of a legal contract in my opinion.  Admittedly some are very poorly written.  I tend to agree that this will clog the judiciary as they play a bigger role in legislative interpretation of intent.

No if you have been watching this court, they have been "getting out of the legislative business". That was the whole idea behind Dobbs, the bump stock decision and numerous others. What this Court has been saying is "we are not legislators" and "Congress do your job". Where legislation or regulation has failed or been non-existent the court has said, "No controlling authority and if you are looking to us to be the controlling authority, we're not it."

[Pinecone]

12 hours ago, GeeBee said:

Congress needs to do its job and thus be accountable for its actions rather than creating broad mandates with little definition. In doing so, influence pedaling will actually decrease because you won't have this interest or that interest trying to get help with government agencies who have over reached.

But then you get Congress into the weeds on technical things.  Remember, most of them have NO expertise in the real world.

The way it is supposed to work is that Congress gives some direction, but leaves the details up to the Agency, which has the technical expertise and knowledge.  The Courts are there to tell Congress that what they asked for is not allowed or the Agency that they overstepped their authority from the law that Congress passed.

Up to now, the last step was not in place.  The Agency wrote the regulations and interpreted what they wrote and decided if they were within their authority, without the Courts being able to weigh in.

This just fixes that.

I had an issue with an OSHA regulation that they had put out interpretations on and cited and fined people for.  The regulation did not say what they said it said.  I finally got to the person who wrote that part of the reg.  He was sure it said what he thought it did.  He wrote the reg and he wrote the interpretations.  I asked him to clear his mind of what he intended and read the reg as published.  He agreed, started mumbling, then said, "OH SHIT."  It did not say what he wanted.  They eventually rewrote the reg.

[GeeBee]

Congress has 535 members. There are doctors, lawyers, pilots, farmers, homemakers, nurses and so on. The Congress has led through two of the worst wars the world has ever seen, dealt with nuclear enemies, 3 depressions, etc. Was it perfect? No. Did it turn out good? Yes. To quote William F. Buckley, "I would rather be governed by the first 2,000 people in the telephone directory than by the Harvard University faculty,” 

Right now, we are being governed by the faculty.

Let's look at some of the bureaucrats governing us. Don't know about you, but I'll take my chances with Congress because I can at least have a say if they are playing with a full deck.

Health and Human Services

 

Department of Energy

White House

 

[1980Mooney]

2 hours ago, GeeBee said:

No if you have been watching this court, they have been "getting out of the legislative business". That was the whole idea behind Dobbs, the bump stock decision and numerous others. What this Court has been saying is "we are not legislators" and "Congress do your job". Where legislation or regulation has failed or been non-existent the court has said, "No controlling authority and if you are looking to us to be the controlling authority, we're not it."

Perhaps the reality of this ruling is not clear.  You say that this "court" has been getting out of the legislative business.  In this ruling that may be true for the Supreme Court but only the Supreme Court of the Judiciary.  It does exactly the opposite for the lower courts below the Supreme Court.

• They have dumped this into the lap of lower Courts below the Supreme Court without giving those lower Courts any way out.
• They are not allowing those Courts to defer to agencies when the legislation is ambiguous (i.e. not allowing the Courts to use the Chevron Doctrine/Deference)
• These lower Courts will have no choice but get "into the weeds" of the legislation as well as the details of agency application and the lower Courts will render their own opinion of legislative intent.  These Courts will likely need to spend more time analyzing and "getting into the weeds"
• The lower Courts will either affirm the agency interpretation or strike it down
• It is unlikely that Congress will redraft the details of the legislation being in question.  It is more likely that the agency will redraft their interpretation which may lead to more challenges in the Court.
• These Courts will serve as the final arbiters of statutory legislative interpretation.

That puts the Judiciary into the "legislative business" in a much bigger way than the past.  Anyone can see that the lower Courts/Judiciary will be forced to " get into the legislative business" rather than deferring to the agencies as in the past. 

And it will invite more challenges in the Courts clogging the process up even more.  Perhaps ultimately the Courts will be so clogged with challenges that they are paralyzed and the agencies can just go about doing their business. 

 

[Shadrach]

10 hours ago, GeeBee said:

Congress has 535 members. There are doctors, lawyers, pilots, farmers, homemakers, nurses and so on. The Congress has led through two of the worst wars the world has ever seen, dealt with nuclear enemies, 3 depressions, etc. Was it perfect? No. Did it turn out good? Yes. To quote William F. Buckley, "I would rather be governed by the first 2,000 people in the telephone directory than by the Harvard University faculty,” 

Right now, we are being governed by the faculty.

Let's look at some of the bureaucrats governing us. Don't know about you, but I'll take my chances with Congress because I can at least have a say if they are playing with a full deck.

Health and Human Services

 

Department of Energy

White House

 

The above are just some of the "interesting" examples.

By the way, Sam Briton (middle) was relieved of their position after "they" were charge with theft stemming from three different incidents in three different states, two grand larceny and one felony theft. A Tanzanian Fashion designer saw photos of Sam at a high profile event wearing a bespoke outfit that was stolen from her at the KIAD baggage claim.

Tyler Cherry has deleted all of his tweets which showcased some very controversial, extremist views about policing, race, and Israel.

Rachel Levine has done a good job of avoiding such controversies so "she" can focus on the important work of normalizing surgical and drug  interventions for minors with gender dysphoria. 

There are agenda driven activists in many other areas of government' but none so colorful as the ones that you've showcased.  I would much rather the courts interpret legislation rather than the appointed bureaucrats interpreting the limits of the statutes that they are charged with enforcing.

[N201MKTurbo]

23 minutes ago, 1980Mooney said:

 

• These Courts will serve as the final arbiters of statutory legislative interpretation.

 

Are you saying there will be no appeal in these decisions? I believe all of these decisions could make their way back to the Supreme Court, if they will hear it.

And you can always plead your case to your representative and see if they can fix it properly. I'm sure the court would prefer that. I don't see where any of these decisions cannot be overridden by legislation.

[1980Mooney]

6 minutes ago, N201MKTurbo said:

Are you saying there will be no appeal in these decisions? I believe all of these decisions could make their way back to the Supreme Court, if they will hear it.

And you can always plead your case to your representative and see if they can fix it properly. I'm sure the court would prefer that. I don't see where any of these decisions cannot be overridden by legislation.

In theory you are absolutely correct:

• "all of these decisions could make their way back to the Supreme Court, if they will hear it."  
  • Given this Supreme Courts not wanting to get involved, I doubt that they will hear it.  They will just reject the appeal and toss it back to the lower Courts.
  • The reality may be that federal circuit courts create a messy hodgepodge of conflicting decisions, with regulations upheld in some areas but overturned elsewhere.
• - "any of these decisions can be overridden by legislation".  Congress cannot over-ride the decision of a Judge.  But they can draft a new bill that amends existing law that, if approved by both houses, eliminates the issue and renders the Judge's decision moot.  But think about the reality - we are talking about intent of parts of existing legislation that may be mired in technical details (especially with the FAA).  Your representative has to build support with other representatives to present it and get it passed.  This is the stuff that used to get deferred to the agencies.  This sort of thing is unlikely to get much priority in Congress.
• Yes Congress in the future can write legislation that is clearer but we are talking about the mountain of existing legislation in contention - and any party can more easily challenge now.
  • In the meantime we will be living with more and more influence by the Courts with Judges' sometimes conflicting interpretations of legislation

[N201MKTurbo]

I think we are overreacting a bit. Especially with regard to the FAA. I can't think about what would land in the courts except some of the airspace and flight path issues. 

I'm a bit unclear about these flight path issues. Are the codified in regulation? Or are they just SOPs used by the controllers? Some are Stars, but often they are just vectors. Would they make some airspace off limits for ATC vectoring?