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Thursday, July 04, 2024

The Corbynification of the GOP Continues

Just before the 2022 midterms, I wrote a column in Haaretz about the Corbynification of the U.S. Republican Party. For all the harping and wailing about the imminent rise of Corbyn-style politics amongst Democrats, it really was the GOP that displayed all of the worst qualities of Corbynism. In fact, I had been drawing Trump/Corbyn parallels as early as 2015! But seriously -- check out the overlap:

  • Penchant for conspiracism? Check.
  • Motivated by an endless abyss of grievance politics? Check.
  • Base comprised of extremely online bigoted trolls? Check.
  • Blind adoration of the One True Leader? Check.
  • Major antisemitism problem? Check.

With the one unfortunate divergence that the American GOP is capable of winning elections, the commonalities are astounding.

Anyway, today's Labour Party has ousted Corbyn and is poised to absolutely curb-stomp the Conservative Party into oblivion, a result that could not fill me with more ecstatic delight. Meanwhile, a sitting Republican Congressman -- Rep. Scott Perry (R-PA) -- just posted and deleted an antisemitic image ... one of the very same ones that Corbyn promoted and became a keynote example of his antisemitic bent.

Nothing like watching history's rhyming rhythm. Though the little trading places thing we're doing with the UK -- they get sensible center-left government, we get resurgent mainstream antisemitism and rule by the divine right of kings -- isn't exactly making for the greatest of July 4th celebrations.


Wednesday, July 03, 2024

Losing Your Chevrons


Somewhere, an environmentalist wished upon a star: "I hate big oil. It's a blight on the universe. If only Chevron would disappear forever!" and a monkey's paw curled once.

I was steeling myself to write about Loper Bright and my official welcome on behalf of the Con Law professoriate to the Admin Law professors joining the "burn all your lecture notes and start from scratch club", and then Trump v. United States came down. Even though the latter is a more immediate big deal and is closer to my expertise wheelhouse (I've fielded far more inquiries from former students asking "what is going on!" with respect to the Trump decision than any ruling in my entire career, Dobbs included), I really don't have all that much to say at this moment. That may change -- in fact, it almost certainly will, as I try to work this blog post into an essay -- but for now I'm going to lay off and just write what I planned to write about the demise of Chevron.

My short version take is this: in many, many cases, we'll see little difference between before and after. This prediction, however, should not be confused with sanguinity. Rather, it is a recognition that judges are human, with the normal assortment of human interests, talents, and vices. 

In most deep-weeds administrative law cases, where judges neither know nor care about the difference between, say, nitrogen oxide and nitrous oxide, they aren't going to actually do a deep dive review of the law from scratch. These issues are hard enough for a team of subject-matter experts with Ph.Ds in the hard sciences grinding away for months. For a judge with a J.D. from Hofstra who last took a statistics class in 11th grade? Forget about it. In practice, no matter what the doctrine purports to demand or what they claim to be doing on the opinion pages, judges will end up deferring to reasonable agency interpretations of the law unless they're howlingly off-base -- which, of course, is why we ended up with Chevron in the first place. Any objective observer of courts sees this sort of thing from judges all the time -- there are all sorts of cases where nominal "de novo" review is the furthest thing from, because judges simply find the topic boring, repetitive, or impenetrable (you can usually spot these cases by their use of the phrase "after careful review ....").

This will be what happens for many if not most cases on obscure rules in unremarkable issue areas. What will change is in those administrative rules on hot button issues of high-salience. Here, Loper Bright doesn't make judges any smarter, but does give them a green light to start substituting their judgment for expert agencies who at least have some measure of accountability to the political process. In other words, Loper Bright won't universally result in the substitution of inexpert judicial policymaking for the judgments of administrative agencies; rather, it will result in that substitution on an ad hoc and arbitrary basis whenever the judge who happens to be draw the case has an idiosyncratic or ideological hobbyhorse to ride. The administrative state will be able to carry on, with a cutaway for partisan judges to meddle more openly whenever partisan proclivities instigate an urge.

So there's your consolation about the end of Chevron. Feeling better? I thought so.