| |
This week, the Supreme Court of the United States (SCOTUS) issued a landmark ruling that marks the beginning of the end of the administrative state. For forty years, unelected bureaucrats have been given broad authority to enact sweeping, burdensome regulations that impact every aspect of American life. The Constitution clearly outlines the separation of powers between the three branches of government, and the executive branch has the power to execute and enforce laws – not enact or interpret legislation. At least, that’s how it’s supposed to work. In 1984, SCOTUS established the “Chevron deference,” a legal test that tells judges when to defer to the agency’s interpretation of a law. This means that if Congress passes a law and there is confusion over how it should be enacted, the courts should allow the agencies to decide the law’s intention. In other words, the executive branch has broad authority to interpret laws passed by Congress, a power that the Founders gave to our judicial branch and our judicial branch only. It also ceded some of the legislative branch’s authority to the executive branch, as the regulations the agencies put in place often extend far beyond the original purpose of the law. This decision, which conservatives have long agreed was made in error, threw off the delicate balance of powers that protects our nation’s freedom and democracy. By empowering unelected bureaucrats to regulate every aspect of American life, this ruling set the stage for the overregulation that is crushing our economy to this very day. The Biden administration has been one of the worst offenders. From jobs-killing policies that kill American energy production to an unconstitutional student loan transfer scheme and mandates on everything from electric vehicles to vaccines, this administration has inserted itself into every workplace, classroom, and household. Until now. On Friday, SCOTUS released its Loper Bright Enterprises, et al. v. Raimondo ruling, overturning the Chevron deference. This is a huge win for the American people, who are back in charge of the legislative process. With this ruling, the balance of powers is restored and the regulatory state that puts special interests before hardworking Americans is on its last legs. I like to remind people that elections have consequences because policies have consequences, and this is a perfect example. President Trump was able to appoint conservative justices who are giving the American people their freedoms back, the way the Founders intended. |
Truer words were never spoken. +++ Two Big Victories for Liberty at the Supreme Court The Justices continue their repair work on the separation of powers. By The Editorial Board Friday was a good day, make that a great day, for liberty and the Constitution at the Supreme Court. The Justices delivered an overdue rebuke to overreaching regulators in a ruling that abolishes Chevron deference, while they also reined in prosecutors who stretched the law in pursuit of Jan. 6 cases. In arguably the most significant decision of the year, a 6-3 majority (Loper Bright Enterprises v. Raimondo) overturned the Court’s 40-year-old Chevron doctrine that told judges to defer to agency interpretations of vague laws as long as they are “reasonable.” Now regulators will have a harder time bending laws, and Congress will have to legislate more clearly. Imagine that. Chevron arose when judges were willy-nilly legislating from the bench, but its flaws were “apparent from the start,” as Chief Justice John Roberts explains for the majority. The doctrine lacked a constitutional basis and clashed with the Administrative Procedure Act’s command that courts “decide all relevant questions of law, interpret constitutional and statutory provisions.” From the start, he says, Chevron was “a ‘rule in search of a justification,’ if it was ever coherent enough to be called a rule at all.” The doctrine spawned confusion and conflict in lower courts, including whether a given law was ambiguous in the first place. As Justice Antonin Scalia put it five years after Chevron was decided: “How clear is clear?” The Chief says deference to regulators became “an impediment, rather than an aid, to accomplishing the basic judicial task.” The High Court hasn’t invoked Chevron since 2016, relying instead on basic statutory interpretive tools and its major questions doctrine, such as in West Virginia v. EPA. “At this point, all that remains of Chevron is a decaying husk with bold pretensions,” the Chief writes. The problem is that lower courts still rely on Chevron and cite it repeatedly to rubber stamp even the most dubious rules. See the D.C. Circuit Court of Appeals. The Court’s considerations about when to revere precedents also support its decision. Not only has Chevron proven unworkable, it “has undermined the very ‘rule of law’; values that stare decisis exists to secure,” the Chief stresses. As Justice Neil Gorsuch notes in a powerful concurrence, “these antireliance harms” aren’t “distributed equally.” While “sophisticated entities and their lawyers may be able to keep pace with rule changes affecting their rights and responsibilities,” others may not. Chevron “has led us to a strange place. One where authorities long thought reserved for Article III are transferred to Article II, where the scales of justice are tilted systematically in favor of the most powerful, where legal demands can change with every election even though the laws do not, and where the people are left to guess about their legal rights and responsibilities.” Lacking a strong legal rebuttal, the three liberal Justices fret about “judicial hubris” and the Court turning “itself into the country’s administrative czar.” “The majority disdains restraint, and grasps for power,” Justice Elena Kagan writes in dissent. “Judges are not experts in the field.” But the progressive impulse to defer to the rule of experts is one reason Americans are so frustrated with government. Some judges may run off the rails, but then some do that now. The crucial constitutional point is that each branch of government stays in its proper lane. *** Chevron’s defenestration will require judges to determine the best reading of statutes. The Chief demonstrates how to do this in Fischer v. U.S. Prosecutors charged a Jan. 6 rioter with violating the 2002 Sarbanes-Oxley Act, of all unlikely statutes. The financial securities law makes it a crime to “corruptly” shred or conceal documents “with the intent to impair the object’s integrity or availability for use in an official proceeding.” This provision is followed by another one punishing anyone who “otherwise obstructs, influences, or impedes” such a proceeding. The government argued this catchall applied to the rioter’s obstruction. Six Justices disagreed. The catchall “was designed by Congress to capture other forms of evidence and other means of impairing its integrity or availability,” the Chief writes. He was joined by Justices Gorsuch, Clarence Thomas, Samuel Alito, Brett Kavanaugh and Ketanji Brown Jackson. It would be “peculiar to conclude that in closing the Enron gap, Congress created a catch-all provision that reaches beyond the scenarios that prompted the legislation,” the Chief adds. The government’s “novel interpretation would criminalize a broad swath of prosaic conduct, exposing activists and lobbyists alike to decades in prison.” The Court’s Friday decisions safeguard individual liberty against overreaching government. Isn’t that why the Founders fought the Revolution? ++++ I believe the IAF is preparing for an all out devastating attack. +++ This was sent by a dear friend and fellow memo reader. +++ The death of the Chevron Doctrine By P+++ F++++++ Today, I will discuss Loper Bright Enterprises v Raimondo. At issue was the Chevron Doctrine, set forth in the 1948 case of Chevron v Natural Resources Defense Council. I have called for a reversal of the Chevron opinion and the Chevron Doctrine since my days in Law School where I crossed swords with one of my professors who correctly saw (and approved of) the power that gave the Executive and regulatory agencies to write rules with minimal interference or oversight by legislators or the public. At this time, there are 50 separate titles in the Code of Federal Regulations, each with multiple chapters which are then further subdivided. The Code of Federal Regulations has more than 200,000 pages. A full set of the Code of Federal Regulations consists of approximately 200 volumes. This is the "democracy" we hear about constantly from our political leaders and media. In Chevron, the Judicial branch, whose job it is to enforce the Constitution, which puts the power to make law in the Legislative branch, defaulted in its duty and allowed the Executive branch to make law. In brief, the Chevron Doctrine is that if a federal statute is ambiguous, courts will and should defer to the administrative agency applying the statute as long as the agency's interpretation is "reasonable". This gave a roadmap to political leaders who wanted to regulate and control and mandate the actions of the public-- pass ambiguous statutes and let the agencies "interpret" them. As we've seen, the agencies have been making the law and pushing further into the everyday life of Americans. The Loper Bright case involved two cases challenging a rule promulgated by the National Marine Fisheries Service pursuant to the Magnuson-Stevens Act. The rule required certain fishing vessels to carry observers on board to collect data necessary for fishery conservation and management, with the cost of those observers to be borne by the vessel owners. The petitioners, various fishing businesses, argued that the Act did not authorize the Fisheries Service to impose these costs on them. The District Court and Appellate Court (1st Circuit) upheld the rule in issue, relying on the Chevron Doctrine. They said the Act was ambiguous as to the issue of observer costs and that the Fishery Service's interpretation was reasonable. In reversing the Appellate Court, the Supreme Court held that the Chevron Doctrine is inconsistent with the Administrative Procedure Act, which requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority. The Supreme Court further said that ambiguity of a statute does not permit courts to defer to a regulatory agency's interpretation simply because there is a plausible way to find that the interpretation is reasonable. The Supreme Court emphasized that while courts may seek guidance from the interpretations of those responsible for implementing statutes, they must not defer to those interpretations. Instead they must independently interpret the statute and ensure that the agency acted within its statutory authority. In the majority opinion, Chief Justice Roberts pointed out that Article III of the Constitution assigns to the Federal Judiciary to adjudicate "Cases" and "Controversies" and he observed that the Framers wanted judges to interpret the law-- citing the famous statement of Chief Justice Marshall in Marbury v Madison: "It is emphatically the province and duty of the judicial department to say what the law is". Roberts went through the history of the expansion of the administrative state and the adoption of the Administrative Procedures Act to check the zeal of Presidents and regulators to adopt new regulations. The key paragraphs in the majority opinion are: "Chevron decided in 1984 by a bare quorum of six Justices, triggered a marked departure from the traditional judicial approach of independently examining each statute to determine its meaning. The question in the case was whether an Environmental Protection Agency regulation was consistent with the "stationary source" as used in the Clean Air Act. To answer that question, the Court articulated and approved a now familiar two-step approach broadly applicable to review of agency action. The first step was to discern whether Congress had directly spoken to the precise question at issue.... "But in a case in which the statute is silent or ambiguous with respect to the specific issue at hand, a reviewing court could not simply impose its own construction of the statute, as would be necessary in the absence of an administrative interpretation. Instead at Chevron's second step the Court had to defer to the agency if it offered a permissible construction of the statute even if not the court would have reached if the question initially had arisen in a judicial proceeding." "Initially, Chevron seemed destined to obscurity. The Court did not at first treat it as the watershed decision it was fated to become; it was hardly cited in cases involving statutory questions of agency authority. But within a few ears, both this Court and the courts of appeals were routinely invoking its two-step framework as the governing standard in such cases" Chevron deference is no longer. The Loper Bright case was decided by a 6-2 vote. The majority opinion was written by Chief Justice Roberts and it was joined by Justices Thomas (who also wrote a concurring opinion), Alito, Gorsuch (who also wrote a concurring opinion), Kavanaugh and Barrett. Justice Kagan wrote a dissent, which was joined by Justice Sotomayor. I urge you to read the quote below from Justice Kagan's dissent. It is a classic pro elite and anti-democratic defense of the administrative state,Justice Jackson did not participate in this case but she joined the dissent in the companion case of Relentless,Inc.v Department of Commerce. So why did Justices Thomas and Gorsuch write concurring opinions and why did Justice Kagan write a dissent? Justice Thomas: "I write separately to underscore a more fundamental problem. Chevron deference violates our Constitution's separation of power." He further wrote: "Chevron compels judges to abdicate their Article III Power". I strongly suggest that you read the full Thomas concurring opinion. Justice Gorsuch wrote mainly about the concept of stare decisis and why,in this case, it was appropriate to overrule an existing precedent. He further said:"Chevron deference rests upon a fictionalized statement of legislative desire, namelya judicial support of the idea that Congress implicitly wishes judges to defer to executive agencies' interpretations". Justice Kagan: "Congress knows that it does not-- in fact cannot write perfectly complete regulatory statutes. It knows that those statutes will inevitably contain ambiguities that some other actor will have to resolve, and gaps that some other actor will have to fill. And it would usually prefer that the actor to be the responsible agency, not a court. Some interpretive issues arising in the regulatory context involve scientific or technical subject matter. Agencies have expertise in those areas; courts do not. Some demand a detailed understanding of complex and interdependent regulatory programs.Agencies know these programs inside-out; again, courts do not". ++++ Iran's UN Mission threatens that 'obliterating war will ensue' if Israel attacks Lebanon"All options, including the full involvement of all resistance fronts, are on the table," it said in the post.Yonah Jeremy Bob contributed to this report.
The report came only days after the Iranian Foreign Minister Ali Bagheri Kani was told by his German counterpart that Iran needed to help prevent a further escalation of the situation in the Middle East. How long would it take to take down Hezbollah?The request also came only a few days after National Unity Party head Benny Gantz made a claim stating that Israel can destroy Hezbollah's military in days. “We can bring Lebanon completely into the dark, and take apart Hezbollah’s power in days,” he said at the 21st Herzliya Conference at Reichman University. HEZBOLLAH FIGHTERS, with posters of Supreme Leader of Iran Ali Khamenei, are photographed by the author at the Badr group headquarters in Baghdad in 2015. (credit: JONATHAN SPYER) A Sunday report by The Telegraph stated that Iran was supplying powerful rockets to Hezbollah through Beirut’s Rafic Al Hariri International Airport and that recent months saw a significant increase in using the airport for storing strategic weapons. Yonah Jeremy Bob contributed to this report. The 268th Day of War in Israel The North Heats Up By Sherwin Pomerantz On Thursday, Israel ordered people in Shajaiye, part of eastern Gaza City, to evacuate as Palestinians reported heavy strikes on the area. Israel's public broadcaster reported that the military was conducting a ground operation to root out Hamas based on intelligence that the armed group had begun to resume control of the neighborhood Mohammed Qraiqea, a researcher with a human rights advocacy group, who was in Shajaiye, described artillery shelling, airstrikes and drone fire. He had seen Israeli tanks on the eastern edge of Gaza City. "The tanks have advanced in a limited manner, so far, on the outskirts of the neighborhood," he said Thursday. By afternoon, he said, most people had evacuated. Shajaiye was home to one of Hamas's strongest battalions. It is unclear how big a presence Hamas now has there. (New York Times) Israel struck Hezbollah targets in Lebanon Saturday as the terror group continued to hit northern communities with rockets and anti-tank missiles amid the growing threat of an escalation and all-out war. Saturday morning saw two anti-tank guided missiles fired from southern Lebanon that targeted the community of Misgav Am. No injuries were reported. The army responded with artillery strikes to the source of fire. A rocket fired in a Hezbollah barrage Friday night struck a barn inside the Western Galilee community of Betzet, killing two horses, after On Saturday afternoon Israeli fighter jets struck a building in southern Lebanon’s Houla where a group of Hezbollah operatives were gathered, the military said. The IDF said the operatives were spotted by troops of the 869th Combat Intelligence Collection Unit, and a short while later the airstrike was carried out. Another building used by Hezbollah in Houla was also struck, the IDF added. It published footage of the strikes. Saturday saw Lebanon’s Caretaker Prime Minister Najib Mikati tour south Lebanon, saying his country faced “psychological warfare” in clashes with Israel, but was working to reach calm on the border. Mikati was checking in on matriculation exams, which were being held despite daily clashes between Israel and Hezbollah on the border. “The army is Lebanon’s wall. If the army does not have a presence in southern Lebanon, the exams could not be held,” he was quoted as saying. Lebanon’s military is deployed in south Lebanon but has no control over Hezbollah, which operates independently and unrestrained. Amid escalating threats from Iran and Hezbollah, a senior military technological industry official said that Jerusalem is prepared to use “doomsday weapons” in the event of a full-scale military confrontation with other countries in the Middle East. Speaking at an event in central Israel on Saturday, Chairman of the Israel Aerospace Industries Workers’ Council Yair Katz said that Israel would use all the weapons at its disposal in order to survive. If Israel is in existential danger and “Iran, Yemen, Syria, Iraq and all the countries of the Middle East decide that it is time to settle [the score] against us, I understand that we have the capabilities to use doomsday weapons,” he said. He was, of course, speaking independently and not as an official spokesperson of the government. Two new IDF soldiers were killed in combat over the weekend bringing the total number of combat fatalities to 318. SSgt Yair Teitlebaum who was one of these killed over the weekend, was buried today in Jerusalem on his 22nd birthday. The family understood that it was the soldier’s desire to give one of his kidneys to a needy person at some time and, in recognition of the desire, many of his organs were transplanted to other soldiers wounded in the fighting along with some of his skin cells for use in grafts. May his memory and those of the other 317 be blessed. ++++ Never Let Anyone Forget How The Media Lied To The World About Joe Biden By Derek Hunter ++++ |
No comments:
Post a Comment