Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
(00:00):
You're listening to charged conversations, andI'm your host Brigham account. Today,
Part two will be discussing the SupremeCourt's decision on the Chevron doctrine and how
it will have a profound impact onlegal cases moving forward. In our last
(00:21):
episode, we discussed the end ofthe Chevron deference, that doctrine that required
courts to defer to federal agency interpretationsof the congressional laws whenever they were ambiguous,
and we learned that a lot ofthe time laws are ambiguous, and
that occurred quite often. It's worthmentioning that before Chevron existed, there was,
(00:43):
in fact another standard which the courtssupplied in these types of cases,
is known as the Skidmore deference.Skidmore is a legal principle established by the
US Supreme Court in the case ofSkidmore versus Swift in Company, nineteen forty
four, and it was the priorrule to Chevron. Under Skidmore difference,
courts give respect to an agency's interpretationof a statute it administers based on the
(01:11):
persuasiveness and thoroughness of the agency's reasoningand its consistency with earlier and later pronouncements.
The key aspects of Skidmore difference includedpersuasiveness number one, gluting the logic
and thoroughness of their analysis. TwoConsistency, of course, would look at
(01:36):
the consistency of the agency's interpretation withprior interpretations it's issued and its track record
over time, meaning, well,this week did they say it was raining?
The last week they said it wassonny, and yet now they want
us to believe it's snowing. Consistency. Third was expertise. The agency's actual
(01:59):
specialized experience and expertise in the relevantfield can weight its interpretation. And finally,
thoroughness. The court looked at thecare in detail with which the agency's
interpretation was formulated. Unlike Chevron difference, which granted agency's significant leeway when Congress
(02:23):
had not spoken directly to an issue, Skidmore difference didn't to give automatic weight
to the agency's interpretation, but ratherit evaluates it on a case by case
basis. Of these factors, now, whether or not the Court will revert
to Skidmore is actually open for interpretation. In addition to Skidmore, I think
(02:47):
there's one other, perhaps more likelyor at least equally lightly outcome by applying
principles of statutory construction under common lawsomething that we lawyers learned in law school.
We can see it pretty straightforward andtime tested process by which courts interpret
(03:08):
and apply legislation. This involves determiningthe meaning of the words used in a
statute and how they should be appliedin specific cases. Statutory construction that common
law term, is guided by severalprinciples and methods to ensure that the court's
interpret statues consistently and in accordance withlegislative intent. Key principles and methods include,
(03:34):
first and foremost, the plain meaningrule. Courts first look at the
plane language of the statue. Ifthe wording is clear and it's not ambiguous,
the statute this then applied according toits plain meaning. If the language
of the statue is ambiguous, thencourts attempt to determine the intent of the
legislature when the statute was enacted.This is known as legislationative intent, and
(04:00):
it can involve looking at the legislativehistory, including the record debates, committee
reports, and other legislative documents.Next, courts can consider the context in
which the statue was written, includingthe structure of the statute and how its
different sections relate to each other.Then courts may consider the purpose or objectives
(04:26):
behind the statute, interpreting the lawin a way that furthers these specific intended
goals. While those are the mainfour, courts can also use established rules
and principles known as canons to interpretstatutes. The canons go back to jolly
old England that include various Latin phrasestranslated here, such as a word is
(04:56):
known by the company at peeps,or general words following specific words must be
interpreted in the context of those specificwords, or if you express one idea
then it is to the exclusion ofothers. Finally, the courts will strive
to interpret statues in a way thatavoids absurd or unreasonable results, and they'll
(05:20):
look to previous judicial decisions interpreting thesame or similar statutes to guide their interpretation.
Through statutory construction, courts aim toapply laws consistently and predictably, respecting
the boundaries of judicial interpretation while adheringto the rule of law. CNBC has
(05:43):
run a good article on this verytopic just today. It said that in
two of these cases remanded to thelower courts that I discussed in Part one,
and lower decision. The plant ofshare the same lawyer. The specific
Legal Foundation ELF and PILF is anentity that had called for an end of
(06:03):
the Chevron deference in a Friend ofthe Court brief and a Meekus brief that
it filed in the Lowber case.It represents at least five different plaintifs whose
cases stand to benefit from Chevron's reversal. CNBC says the Public Interest Law Firm
is one of several conservative quote antiregulation groups that have been preparing for the
(06:28):
Supreme Court's reversal of Chevron. Accordingto Accountable dot Us, a non partisan
research organization focused on special interests,not only is the conservative legal movement long
been pushing for the downfall of Chevron, but e groups actually lined up to
challenge ahead of the ruling to immediatelybenefit from this new regulatory landscape, says
(06:54):
Caroline Sisson, president to Accountable US. She told NBC if they're wasting no
time to ensure that corporations and specialinterest rep rewards of this power grab ruling
at the expense of everyday Americans.She went on to say that those rulings
convey a clear message from the SupremeCourt that the dwarves to the courthouse are
(07:15):
open to hear complaints about agency power. Well, is this really about agency
power or is it about restoring thebalance and the ability of the courts to
say, Wait a minute. Yourfriends in Congress said we'll make this ambiguous.
Wink wink, you know what todo with this, now, powerful
(07:36):
agency, wink wink. And thepowerful agency said, oh, yes,
we do. There's two ways oflooking at this, and I guess it
depends on what perspective. But likeI mentioned in part one, I find
it curious that in nineteen eighty four, when Chevron was decided, liberals opposed
(07:57):
the Chevron decision saying it gave toomuch power to federal agencies. My how
times have changed. So the nextquestion is, with Chevron out, could
its legal twin be next again?Sohondas Gupta wrote to discussing the case of
Our v. Robins Ours in nineteenninety seven Supreme Court decision maintaining the same
(08:20):
deference that Chevron said is oh tofederal agencies not with the interpretation of federal
legislation, but where the interpretation ofan agency's own regulations is at stake,
it is the twin of Chevron.So if federal administrative agencies lose their accustomed
(08:43):
deference as far as the meaning ofstatues is concerned, a similar argument may,
and I think will, be leveledagainst their claim to deference in the
meaning of regulations. This is likelyto go on for some time. But
wait, there's more Chevron and isn'tthe only major doctrine to be modified by
(09:07):
the Supreme Court in this term.In the case of Corner Post Ink versus
Board of Governors of the Federal ReserveSystem, the Court held that the statue
of limitations applicable to many agency rulechallenges under the Administrative Procedure Act the APA
that I mentioned earlier is more flexiblethan previously thought and will allow challenges that
(09:35):
used to be time barred. Thiscase, in particular, involved a company
that wasn't even in existence when thestatue of limitations would have run on challenging
a regulation. The Justice has statedto depend by justice core such that under
the common law definition of when anaction a cruise, what really could not
(09:56):
have crued when the company wasn't evenin existence. Most federal laws and federal
regulations. Let me say that again, most federal regulations allow you to challenge
the issuance of that regulations, butthey have time restraints on when you can
(10:16):
do it. Now, if you'rea new company that didn't exist when the
original statute of limitations expired, youmay now sue. This decision, one
that has not really been widely reported, is potentially breathtaking in scope. The
wait. There's even more the securitiesthat Exchange Commission brought suit against George Jrkessi,
(10:43):
who established two hedge funds with Patriottwenty eight is the investment advisor managing
twenty four million dollars in assets fromabout one hundred investors. The SEC initiate
an investigation of George and twenty eleveneventually brings in house action and agency action
in house agency alleging fraud under multipleacts. Jarkksse challenged the SEC's proceedings in
(11:11):
the U S District Court for theDistrict of Columbia, signing constitutional infringements.
Hey, I have Seventh Amendment rights. I get a trial by jury.
But both the District Court and theUS Court of Appeals for the DC Circuit
denied the injunction, finding that theDistrict Court lack jurisdiction. After an evidentiary
(11:33):
hearing by an administrative law judge.Newsflash, federal administrative law judges do not
need to be LAWYERSSSE was s foundguilty of securities fraud char KESSE sought review
by the Commission, and while thatpetition was pending, the US Supreme Court
decided a different case. And Iwon't get into all of that, but
(11:54):
in essence, the Commission affirmed thefraud findings and post penalties, rejected several
constitutional arguments. As the law fairin Greenberg triage noted, the court's ruling
may have significant implications. As aninitial matter, the decision amounted to a
retrial rejection of the SEC's administrative forum. Further, while the SEC has limited
(12:18):
number of enforcement actions it brings inadministrative processes, given the substantial costs associated
with federal court litigation, this casemay force the SEC to be more selective
in its future enforcement efforts. Morebroadly, this decision calls into question whether
any federal agency, not just theSEC, can bring in house proceedings to
(12:41):
to enforce civil penalties. This isparticularly noteworthy because although some agencies like the
SEC, may choose whether to pursuecivil penalties in federal court or via in
house administrative proceeding. Other agencies likethe Occupationals Safety and Health Review Commission oh
(13:01):
SHEP, are only statutorily authorized topursue enforcements through in house proceedings. Even
the federal agency that I ran andthe one that I was the General council
for, largely pursued in house civilpenalties. Sometimes these in house proceedings are
(13:26):
not affectionately called kangaroo courts. Andwhile most agencies, including the ones I
was associated with, worked very hardto separate agency personnel or bringing the civil
penalty cases from the person adjudicating ordeciding on such an issue, the bottom
(13:48):
line was the people bringing the caseand the people ruling on the case all
come from the same agency. Now, in many cases agencies all also have
a judicial review option after pursuing allagency remedies. But the bottom line is
this could have an impact far beyondripple or all federal agencies, where the
(14:13):
power of certain enforcement could be substantiallycurtailed, And as the Descent noted,
the constitutionality of hundreds of statues maynow be in peril and dozens of agencies
could be stripped of their power toenforced laws enacted by Congress. Well,
I'm not sure it's quite that bad. As we all know, the truth
is somewhere in the middle. Andwhat these cases indicate, literally is that
(14:41):
this Supreme Court has decided that federalagencies have pushed too hard, gone too
far, assumed too much power,and that the pendulum needs to swing back
the other way. How far itwill swing, we'll all just have to
sit back and watch. I've reallyenjoyed today's podcast, which explored the Chevron
(15:05):
decision reversals implications in this broader contextof recent Supreme Court rulings. I think
what is clear is that these caseshave reshaped the legal and regulatory landscape,
and to some extent, I thinkthey highlight ongoing tensions between federal agencies,
the judiciary, and Congress. Aswe move forward, the evolving interpretation of
(15:26):
agency authority and judicial oversight will continueto shape the governance of federal policy actions.
With respect to the energy sector,We'll have to see whether certain environmental
regulations environmental enforcement actions will stand upor whether some of the acts and high
stakes regulations, including the tailpipe emissionRule, the Cold Power Plant Rule,
(15:52):
and all of the other environmental rulesthat the Biden administration has been pushing out
I'll be subject to an ongoing legislativeattack. Thanks for listening to charge conversations.
This is a Joe Strecker production.I'm your host, Wigan McCown,
and I ask you to please staytuned for more discussions on this and other
(16:14):
energy related topics. I'll see younext time.
You're listening to charged conversations, andI'm your host Brigham account. Today,
Part two will be discussing the SupremeCourt's decision on the Chevron doctrine and how
it will have a profound impact onlegal cases moving forward. In our last
(00:21):
episode, we discussed the end ofthe Chevron deference, that doctrine that required
courts to defer to federal agency interpretationsof the congressional laws whenever they were ambiguous,
and we learned that a lot ofthe time laws are ambiguous, and
that occurred quite often. It's worthmentioning that before Chevron existed, there was,
(00:43):
in fact another standard which the courtssupplied in these types of cases,
is known as the Skidmore deference.Skidmore is a legal principle established by the
US Supreme Court in the case ofSkidmore versus Swift in Company, nineteen forty
four, and it was the priorrule to Chevron. Under Skidmore difference,
courts give respect to an agency's interpretationof a statute it administers based on the
(01:11):
persuasiveness and thoroughness of the agency's reasoningand its consistency with earlier and later pronouncements.
The key aspects of Skidmore difference includedpersuasiveness number one, gluting the logic
and thoroughness of their analysis. TwoConsistency, of course, would look at
(01:36):
the consistency of the agency's interpretation withprior interpretations it's issued and its track record
over time, meaning, well,this week did they say it was raining?
The last week they said it wassonny, and yet now they want
us to believe it's snowing. Consistency. Third was expertise. The agency's actual
(01:59):
specialized experience and expertise in the relevantfield can weight its interpretation. And finally,
thoroughness. The court looked at thecare in detail with which the agency's
interpretation was formulated. Unlike Chevron difference, which granted agency's significant leeway when Congress
(02:23):
had not spoken directly to an issue, Skidmore difference didn't to give automatic weight
to the agency's interpretation, but ratherit evaluates it on a case by case
basis. Of these factors, now, whether or not the Court will revert
to Skidmore is actually open for interpretation. In addition to Skidmore, I think
(02:47):
there's one other, perhaps more likelyor at least equally lightly outcome by applying
principles of statutory construction under common lawsomething that we lawyers learned in law school.
We can see it pretty straightforward andtime tested process by which courts interpret
(03:08):
and apply legislation. This involves determiningthe meaning of the words used in a
statute and how they should be appliedin specific cases. Statutory construction that common
law term, is guided by severalprinciples and methods to ensure that the court's
interpret statues consistently and in accordance withlegislative intent. Key principles and methods include,
(03:34):
first and foremost, the plain meaningrule. Courts first look at the
plane language of the statue. Ifthe wording is clear and it's not ambiguous,
the statute this then applied according toits plain meaning. If the language
of the statue is ambiguous, thencourts attempt to determine the intent of the
legislature when the statute was enacted.This is known as legislationative intent, and
(04:00):
it can involve looking at the legislativehistory, including the record debates, committee
reports, and other legislative documents.Next, courts can consider the context in
which the statue was written, includingthe structure of the statute and how its
different sections relate to each other.Then courts may consider the purpose or objectives
(04:26):
behind the statute, interpreting the lawin a way that furthers these specific intended
goals. While those are the mainfour, courts can also use established rules
and principles known as canons to interpretstatutes. The canons go back to jolly
old England that include various Latin phrasestranslated here, such as a word is
(04:56):
known by the company at peeps,or general words following specific words must be
interpreted in the context of those specificwords, or if you express one idea
then it is to the exclusion ofothers. Finally, the courts will strive
to interpret statues in a way thatavoids absurd or unreasonable results, and they'll
(05:20):
look to previous judicial decisions interpreting thesame or similar statutes to guide their interpretation.
Through statutory construction, courts aim toapply laws consistently and predictably, respecting
the boundaries of judicial interpretation while adheringto the rule of law. CNBC has
(05:43):
run a good article on this verytopic just today. It said that in
two of these cases remanded to thelower courts that I discussed in Part one,
and lower decision. The plant ofshare the same lawyer. The specific
Legal Foundation ELF and PILF is anentity that had called for an end of
(06:03):
the Chevron deference in a Friend ofthe Court brief and a Meekus brief that
it filed in the Lowber case.It represents at least five different plaintifs whose
cases stand to benefit from Chevron's reversal. CNBC says the Public Interest Law Firm
is one of several conservative quote antiregulation groups that have been preparing for the
(06:28):
Supreme Court's reversal of Chevron. Accordingto Accountable dot Us, a non partisan
research organization focused on special interests,not only is the conservative legal movement long
been pushing for the downfall of Chevron, but e groups actually lined up to
challenge ahead of the ruling to immediatelybenefit from this new regulatory landscape, says
(06:54):
Caroline Sisson, president to Accountable US. She told NBC if they're wasting no
time to ensure that corporations and specialinterest rep rewards of this power grab ruling
at the expense of everyday Americans.She went on to say that those rulings
convey a clear message from the SupremeCourt that the dwarves to the courthouse are
(07:15):
open to hear complaints about agency power. Well, is this really about agency
power or is it about restoring thebalance and the ability of the courts to
say, Wait a minute. Yourfriends in Congress said we'll make this ambiguous.
Wink wink, you know what todo with this, now, powerful
(07:36):
agency, wink wink. And thepowerful agency said, oh, yes,
we do. There's two ways oflooking at this, and I guess it
depends on what perspective. But likeI mentioned in part one, I find
it curious that in nineteen eighty four, when Chevron was decided, liberals opposed
(07:57):
the Chevron decision saying it gave toomuch power to federal agencies. My how
times have changed. So the nextquestion is, with Chevron out, could
its legal twin be next again?Sohondas Gupta wrote to discussing the case of
Our v. Robins Ours in nineteenninety seven Supreme Court decision maintaining the same
(08:20):
deference that Chevron said is oh tofederal agencies not with the interpretation of federal
legislation, but where the interpretation ofan agency's own regulations is at stake,
it is the twin of Chevron.So if federal administrative agencies lose their accustomed
(08:43):
deference as far as the meaning ofstatues is concerned, a similar argument may,
and I think will, be leveledagainst their claim to deference in the
meaning of regulations. This is likelyto go on for some time. But
wait, there's more Chevron and isn'tthe only major doctrine to be modified by
(09:07):
the Supreme Court in this term.In the case of Corner Post Ink versus
Board of Governors of the Federal ReserveSystem, the Court held that the statue
of limitations applicable to many agency rulechallenges under the Administrative Procedure Act the APA
that I mentioned earlier is more flexiblethan previously thought and will allow challenges that
(09:35):
used to be time barred. Thiscase, in particular, involved a company
that wasn't even in existence when thestatue of limitations would have run on challenging
a regulation. The Justice has statedto depend by justice core such that under
the common law definition of when anaction a cruise, what really could not
(09:56):
have crued when the company wasn't evenin existence. Most federal laws and federal
regulations. Let me say that again, most federal regulations allow you to challenge
the issuance of that regulations, butthey have time restraints on when you can
(10:16):
do it. Now, if you'rea new company that didn't exist when the
original statute of limitations expired, youmay now sue. This decision, one
that has not really been widely reported, is potentially breathtaking in scope. The
wait. There's even more the securitiesthat Exchange Commission brought suit against George Jrkessi,
(10:43):
who established two hedge funds with Patriottwenty eight is the investment advisor managing
twenty four million dollars in assets fromabout one hundred investors. The SEC initiate
an investigation of George and twenty eleveneventually brings in house action and agency action
in house agency alleging fraud under multipleacts. Jarkksse challenged the SEC's proceedings in
(11:11):
the U S District Court for theDistrict of Columbia, signing constitutional infringements.
Hey, I have Seventh Amendment rights. I get a trial by jury.
But both the District Court and theUS Court of Appeals for the DC Circuit
denied the injunction, finding that theDistrict Court lack jurisdiction. After an evidentiary
(11:33):
hearing by an administrative law judge.Newsflash, federal administrative law judges do not
need to be LAWYERSSSE was s foundguilty of securities fraud char KESSE sought review
by the Commission, and while thatpetition was pending, the US Supreme Court
decided a different case. And Iwon't get into all of that, but
(11:54):
in essence, the Commission affirmed thefraud findings and post penalties, rejected several
constitutional arguments. As the law fairin Greenberg triage noted, the court's ruling
may have significant implications. As aninitial matter, the decision amounted to a
retrial rejection of the SEC's administrative forum. Further, while the SEC has limited
(12:18):
number of enforcement actions it brings inadministrative processes, given the substantial costs associated
with federal court litigation, this casemay force the SEC to be more selective
in its future enforcement efforts. Morebroadly, this decision calls into question whether
any federal agency, not just theSEC, can bring in house proceedings to
(12:41):
to enforce civil penalties. This isparticularly noteworthy because although some agencies like the
SEC, may choose whether to pursuecivil penalties in federal court or via in
house administrative proceeding. Other agencies likethe Occupationals Safety and Health Review Commission oh
(13:01):
SHEP, are only statutorily authorized topursue enforcements through in house proceedings. Even
the federal agency that I ran andthe one that I was the General council
for, largely pursued in house civilpenalties. Sometimes these in house proceedings are
(13:26):
not affectionately called kangaroo courts. Andwhile most agencies, including the ones I
was associated with, worked very hardto separate agency personnel or bringing the civil
penalty cases from the person adjudicating ordeciding on such an issue, the bottom
(13:48):
line was the people bringing the caseand the people ruling on the case all
come from the same agency. Now, in many cases agencies all also have
a judicial review option after pursuing allagency remedies. But the bottom line is
this could have an impact far beyondripple or all federal agencies, where the
(14:13):
power of certain enforcement could be substantiallycurtailed, And as the Descent noted,
the constitutionality of hundreds of statues maynow be in peril and dozens of agencies
could be stripped of their power toenforced laws enacted by Congress. Well,
I'm not sure it's quite that bad. As we all know, the truth
is somewhere in the middle. Andwhat these cases indicate, literally is that
(14:41):
this Supreme Court has decided that federalagencies have pushed too hard, gone too
far, assumed too much power,and that the pendulum needs to swing back
the other way. How far itwill swing, we'll all just have to
sit back and watch. I've reallyenjoyed today's podcast, which explored the Chevron
(15:05):
decision reversals implications in this broader contextof recent Supreme Court rulings. I think
what is clear is that these caseshave reshaped the legal and regulatory landscape,
and to some extent, I thinkthey highlight ongoing tensions between federal agencies,
the judiciary, and Congress. Aswe move forward, the evolving interpretation of
(15:26):
agency authority and judicial oversight will continueto shape the governance of federal policy actions.
With respect to the energy sector,We'll have to see whether certain environmental
regulations environmental enforcement actions will stand upor whether some of the acts and high
stakes regulations, including the tailpipe emissionRule, the Cold Power Plant Rule,
(15:52):
and all of the other environmental rulesthat the Biden administration has been pushing out
I'll be subject to an ongoing legislativeattack. Thanks for listening to charge conversations.
This is a Joe Strecker production.I'm your host, Wigan McCown,
and I ask you to please staytuned for more discussions on this and other
(16:14):
energy related topics. I'll see younext time.
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