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Monthly Archives: July 2024
Administrative State — Condition Critical
When I was going to law school, there was this relatively new group dedicated to a legal counter-revolution. One of their desires was to roll back the growth of the administrative state. According to this group, the Supreme Court of the 1900-1935 period had it right, and that many aspects of administrative law were unconstitutional. They sought to overturn most of the Supreme Court decisions regarding administrative law from the 1935-86 period. That group was the Federalist Society, and the legal extremists who were outliers in 1990 are, while still extremists and outliers, now the majority of the U.S. Supreme Court. The end of term saw three major decisions which show that these supporters of laissez faire capitalism which place investors over workers, consumers and the general public are very close to near total success.
To understand these decisions, a brief background on administrative law would be helpful. The basic concept of the administrative state is that the real world is complex and that the legislative process is too cumbersome (and legislators are too lacking in technical expertise) to quickly adjust to changes. To meet this need, Congress established administrative agencies which would have the expertise to evaluate changes and could quickly enact regulations to deal with those changes. In the early days, the Supreme Court resisted this process under the “non-delegation doctrine” which held that Congress could not delegate the power to make law. After the New Deal, the Supreme Court found that Congress could delegate the power to make rules as long as the statutes granting that regulatory power was sufficiently clear on the desired goals of the regulations and the standards that the agencies were to follow in those regulations. In recent years, there has been an attempt to partially resurrect the non-delegation doctrine in the form of the “major questions doctrine” which seeks to limit the application of the existing laws to new issues even though the very reason for administrative agencies is to increase the flexibility to respond to new issues in a field. Shortly after World War II, Congress adopted the Administrative Procedure Act — a complex set of laws which detail the process for adopting regulations (longer than the early advocates of administrative law would have liked), challenging those regulations, and imposing administrative penalties for violations of those regulations. This year’s cases involved three aspects of that administrative process.
The most significant of these cases involve whether a regulation is authorized by statute. Back in the 1980, when many judges were appointed by Democrats but Republicans were in the White House, a Republican-controlled Supreme Court decided in a case involving Chevron and environmental groups that courts should defer to the interpretation given by administrative agencies of ambiguous statutes in determining the validity of regulations. There were always question about how ambiguous a statute needed to be for Chevron deference to apply and whether recently adopted views (of the political appointees over the agency) should be given the same deference as long-standing interpretations, but the basic concept was considered good law. But to a group trying to neuter the administrative state, allowing agencies broad discretion to determine what regulations are allowed was something that could not be tolerated. For most of the past decade or so, this crusade had to be satisfied with a Supreme Court that abused textualism to find that statutes were not sufficiently ambiguous and that the administrative agencies’ interpretations of their governing statutes were, therefore, not reasonable. To be crystal clear, at a general level, this push back on Chevron deference is not completely insane. An administrative agency should not be allowed to ignore the governing statute, and it is primarily the obligation of the judicial branch to determine the meaning of a statute. But, in many cases, the rules for construing statutes suggest multiple alternative answers. While one answer may be the “best” answer under the rules, it is not crystal clear that the “best” answer is the answer that Congress intended. When there is no conclusive answer, should the agency have some flexibility or should a split Supreme Court (or appellate court) be able to insist on one answer.
The First Amendment and the Internet
The last week of the Supreme Court term was an utter disaster for anybody believing in the rule of law. I will get to the worst of the worst over the next week, but I am going to start with the cases that merely had ambiguous result.
The Supreme Court had two cases involving how the First Amendment applies to social media companies. The first, Murthy vs. Missouri, involved whether governmental “jawboning” of social media companies to more closely control the content posted on their websites was improper coercion infringing on the First Amendment rights of users of those websites. The second, Moody vs. NetChoice (and the companion case, NetChoice vs. Paxton — yes, that Paxton) involves the state laws of Florida and Texas that seek to regulate the ability of social media websites to edit their own content.
Starting with Murthy, this case was brought in the Western District of Louisiana. While it was brought in a division that had multiple judges, they were all appointed by President Trump. In other words, it was guaranteed to have a judge who was sympathetic to plaintiffs’ complaints. The plaintiffs were a mix of private conspiracy theorists and the Republican Attorney Generals of Louisiana and Missouri. The gist of their complaints was that various social media websites had removed or downgraded certain posts submitted by these individuals under those companies’ policies governing the content of posts. These posts included misinformation about topics like COVID and the elections. At the same time, certain officials in the federal government were reaching out to these companies to encourage them to take a more vigorous editorial control over the content of their websites to block such information. Plaintiffs alleged that, even though these officials had no regulatory authority over these websites, just the fact that the federal government was raising these issues with these companies was coercive and that the various websites took adverse actions with regards to the individuals posts.
United Kingdom election
We in the U.S. probably pay much more attention to the United Kingdom than it merits. The advantage of having a mostly shared language, the British Broadcasting Corporation being one of the premier news organizations, the cultural ties , and the history of U.S. news companies basing their foreign desk in London means that it Americans get a lot of international news out of the United Kingdom and much less from other countries.
Today, the United Kingdom will cast ballots to elect a new House of Commons. As the name suggests, the House of Lords is not a fully-democratic body (although recent changes have created an electoral process in which only some of the hereditary nobility hold seats in the House of Lords with the heredity nobility choosing who gets to fill those seats). And membership in the House of Lords is for life (except those, like the bishops of the Church of England, who hold a seat by virtue of their office). So the election is only for the House of Commons. But in the U.K.’s current political system, almost all of the power rests with the House of Commons. The House of Lords has the right to propose amendments to legislation passed by the Commons, but, ultimately, the Lords are expected to go along with whatever the Commons ultimately passes after the back and forth over amendments.
The House of Commons is composed of 650 members. Like in the U.S., the seats are distributed to the different regions of the country based on population. The rules are not quite as strict as in the U.S. in terms of the permitted variation, and there are some remote districts which are “protected” by law, but the general principle of “one person, one vote” remains. The district lines, since the 1940s, are drawn by nonpartisan boundary commissions (one for each of the four “nations” — England, Northern Ireland, Scotland, and Wales — which comprise the United Kingdom.) As such, the first step in drawing the lines is determining how many seats each nation gets (and within England, the seats are further allocated by region). The process is somewhat drawn out with multiple rounds of maps being published and the public getting to comment on it. While the review starts every eight years, it has to be completed before the next election or the process stars over after the next election. As a result, this election features the first new maps since the 2010 election. In discussing the likely swing in this election, you have three different baselines: 1) the number of seats actually held at the end of parliament; 2) the number of seats won in 2019 (as there are usually multiple vacancies during the five-year term of a parliament with the by-elections — what we could call special elections — having a different result than the last general election and sometimes members change parties); and 3) “notional” seats (a guess at what the results would have been in 2019 under the new lines).
Posted in Elections
Tagged 2024 U.K. Parliament elections, Alba, Alliance Party, Brexit Party, Conservative Party, Democratic Unionist Party, Green Party (U.K.), Keir Starmer, Labour Party, Liberal Democrat Party, Plaid Cymru, Reform Party, Rishi Sunak, Scottish Nationalist Party, Sinn Fein, Social Democratic and Labour Party, Ulster Unionist Party, United Kingdom, United Kingdom Independence Party
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