Does the FTC actually have the power to set rules like this effectively now that Chevron deference isn't a thing? I'd imagine e.g. the New York Times, among others, will quickly sue to stop this, no?
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[0] https://www.ftc.gov/system/files/ftc_gov/pdf/holyoak-dissent...
My expectation is a case will quickly be brought in the Northern District of Texas, they'll rule it unlawful (following Commissioner Holyoak's lead), then it'll get bumped up to the 5th Circuit on appeal and they'll issue a stay.
I don't expect to see this rule take affect anytime soon, if ever.
This won't be the case in California, but I've observed this in both Indiana and Texas. I haven't subscribed to the local paper here in NC, because I can tell at a glance that it's the same company and I've already had to dealt with their shenanigans twice.
While I wouldn't be totally surprised to see this argument, Commissioner Holyoak's dissenting statement doesn't raise it. Instead she purports 1) the FTC didn't properly follow the rule making requirements and 2) the rule is overbroad.
I don't believe this is accurate, as you stated
>The overturning of Chevron deference enables the judiciary to first find that the FTC's authority for this rule is grounded in an ambiguous statute and then decide the FTC went beyond their authority.
The only thing the SCOTUS can do is rule against the agency for exceeding its congressional authority. They aren't substituting their own expertise. Correct me if I'm wrong.
The plain reading of Loper Bright is that the courts should make their own independent interpretation of the statutory provisions. In doing so the court can ignore the agency’s expertise.
That is what Roberts' conclusion wants it to sound like but he claims a lot more power for the courts than the statement implies.
> In an agency case as in any other, though, even if some judges might (or might not) consider the statute ambiguous, there is a best reading all the same—“the reading the court would have reached” if no agency were involved. Chevron, 467 U. S., at 843, n. 11. It therefore makes no sense to speak of a “permissible” interpretation that is not the one the court, after applying all relevant interpretive tools, concludes is best. In the business of statutory interpretation, if it is not the best, it is not permissible.
In other words, the judiciary has final say on the "best reading" of a statute and all other readings definitionally exceed the authority granted by the statute.
> They aren't substituting their own expertise.
examples of Chevron questions that are now up to the judiciary to identify the "single, best meaning", independently of agency interpretation:
> the Food and Drug Administration (FDA) regulates “biological product[s],” including “protein[s].” When does an alpha amino acid polymer qualify as such a “protein”?
> What makes one population segment “distinct” from another? Must the Service treat the Washington State population of western gray squirrels as “distinct” because it is geographically separated from other western gray squirrels?
I find it exceptionally hard to imagine an answer to either of those questions that don't require a judge to exercise their own chemistry or biology expertise, however limited that may be.
SCOTUS' power/respect only goes as far as they're actually listening to the will of Americans. This is not representing Americans if they override. Same for abortion (just legality not anything about enforcement), same for presidential immunity.
We have expectations, and they do not align with SCOTUS, so SCOTUS is not a valid interpretive institution. "The Supreme Court has made their decision, let's see them enforce it."
And against my best judgement, I’ll add that in it was roe v wade itself that was essentially judges creating law (shoehorning abortion rights into a right to privacy is a stretch).
You call out yourself that the judges are essentially creating law. (presidential immunity and abortion both are just bonkers decisions based on thoughts and feelings). I think the only way to curb that from the supreme court is that the other governing body capable of action (see not congress) needs to remind SCOTUS that they've got finite power.
Do you have another alternative here? Maybe more ethics rules that SCOTUS doesn't have to follow? Wait for congress to impeach a sitting justice for corruption? Hopes and prayers?
In practice abolishing Chevron deference mostly means rules will follow the politics of judges rather than the current administration. TBH I think this rule is far enough from the culture war that it will probably stand anyway. Unless the NYT happens to buy the judges a lot of vacations...
Source ? Asking as a non American
It seems to me there are multiple understanding of the role of scotus in general and the inoperative rules of the constitution. "Explicitly not supposed to represent the will of the people" seems to be one perspective but not the only one.
Every constitutional democraty will have a tension between the constitutional and democratic part. And that tension will be felt in all of its institutiona
The main difference is that now unelected judges decide how to interpret the law instead of unelected administrative officials. But that's what judges do.
What this is really about is that nobody wants to get blamed for what happens. So Congress passes purposely ambiguous laws and then deflects blame onto the courts for interpreting them one way or the other. The courts didn't like that so they said they'd defer to administrative agencies. It turns out the administrative agencies did like that, because they have almost no direct accountability and the only elected ticket in the executive branch has a term limit and frequently switches parties, so it was easy for them to participate in the revolving door and line their pockets.
Now the courts are going to go back to doing their job, so naturally now they get the blame for Congress passing ambiguous laws again, and the people profiting from the status quo are railing against it as if the courts are doing something wrong instead of doing what they ought to have been doing the whole time.
The problem is, they have to, to a certain point. All government institutions ultimately derive their power from the willingness of the governed to live by their laws. Most decisions are minor enough and stacked with enough legalese that the average American doesn't care, but when you have more and more decisions that are as far out of right-field as the recent court has been making and corrupt justices making those decisions, it erodes the willingness of people to live under those decisions as time goes on.
> (shoehorning abortion rights into a right to privacy is a stretch).
I mean, only if you want the government telling twelve-year-olds that they'll need to push a baby out of a pelvis that is not yet wide enough to safely give birth.
The idea of "privacy" in this context is that generally speaking, it's not the government's business what you do with your body while knowingly and consensually under the care of a doctor. That is private for purposes of what the government can tell you to do. Maybe "confidentiality" would be a better term for the court to have used, but it's not a completely weird term.
Yeah, but they could've overturned it if they didn't like it.
> The main difference is that now unelected judges decide how to interpret the law instead of unelected administrative officials. But that's what judges do.
This is a huge difference you kinda skip over. Should the policies and regulations of 100s of industries be decided by:
1. People who are only familiar with court proceedings 2. Experts in those industries with experience in those industries
One of those things is meaningfully worse, because we're going to get a ton of "armchair experts" on culture war issues who have no idea about what's happening on the ground, and just have their own culture-war opinion that ignores the nuance of the situation.
But the rules I'm thinking of are more about Roe V. Wade, which don't make sense in their interpretation of the laws.
It also goes to the heart of the arbitrariness of the rulings if they can overturn previous precedent 'just because they want to' which is a lot of the logic of the rulings.
Brown v. Board is famous for not just overturning the precedent, but for giving a reasonable understanding of the precedent was meaningfully unfair in the previous setup.
I want to agree with you but the vote was split down party lines completely with 2 dissenters being republican.
https://en.wikipedia.org/wiki/List_of_members_of_the_Federal...
And the courts are not supposed to represent the “will of the people”. Law is not a popularity contest.
The question is if they could've passed it to begin with. There is nothing in the constitution giving Congress the power to delegate its lawmaking authority to the executive branch, much less deprive the courts of their interpretive role.
> Should the policies and regulations of 100s of industries be decided by:
> 1. People who are only familiar with court proceedings 2. Experts in those industries with experience in those industries
The first one is actually better, because it makes it harder for the industry to capture the decisionmakers. Meanwhile the experts are still in the court, they just have to argue their case before the judge instead of having the parties argue their case before the "experts" with a sack of cash.
The "modern era" part comes from the majority opinion of Roe, which notes that abortion was viewed in a much better light when the constitution was written. Anti-abortion sentiment is a fairly modern phenomenon.
“It is thus apparent that at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect.”
The "right to privacy" includes the right to medical privacy and privacy over your body. It's not the government's concern to dictate what and how you can treat your own body. The natural extension being that it violates the 14th Amendment for the government to surveil intimate medical decisions.
In terms of the history I have not dug into it but there seems to be conflicting arguments based on your priors. It doesn't seem cut and dry enough to just say it was a right then so it is now, if it was why not just do that instead of the whole privacy deal?
From Dobbs majority opinion: "English cases dating all the way back to the 13th century corroborate the treaties' statements that abortion was a crime."
I am also skeptical of origionalism. I don't know how much bearing 13-18th century common law should have on modern day law, especially when there was assuredly a diverse set of opinions on abortion just like today. Why shouldn't the 20th century have the same amount of weight as the 18th?
To me it seems that even if you believe abortion is morally right Roe was legislating from the bench. These things should come from congress not the supreme court.
An unborn fetus has never been granted rights in our constitution or anywhere else. It does not have personhood. There is only then one person here: the owner of the body.
> Abusing your spouse
This doesn't work, because your spouse has personhood and therefore rights.
To be clear, this has never been solved by any courts in the US. We still do not consider the unborn to be American citizens with individual personhood. The Supreme Court decided that's hard, so they just didn't do it when Roe was overturned. They essentially "carved out" an exception to privacy for exactly one-use case - Abortion.
You can certainly drink while pregnant. You can certainly smoke while pregnant. Because that is your body and your right, and you are exactly one person. None of that has changed from a legal standpoint. Now, you are one person with every right to privacy... except one.
I think, if you wish to ban abortion, you have to start at the core issue - who is considered a person, and who isn't? WHEN does an arrangement of cells become coherent enough to be considered a person? The reason nobody wants to answer this is because it's very hard, and there's a lot of unfortunate implications.
Then the Supreme Court "cheated", in my opinion.
> These things should come from congress not the supreme court
They already did come from Congress, when Congress passed the 14th amendment, in my opinion.