Lake Erie Conservative

thoughtful discussion(s) about issue(s)

Posts Tagged ‘chevron deference’

… Look in the Mirror , Madame Associate Justice [#Sotomayor]…

Posted by paulfromwloh on Wednesday,November 30th,2016

.. she thinks that there is no such thing as ” judicial activism . ” Well , well ..

.. all she has to do is look in the mirror . She is the archtype of the radical judicial activist ..

.. judicial activism is , by definition , the construct of laws and / or parts of THE US Constitution and its Amendments . Doing so takes them entirely out of the course of their original and accepted meaning …

.. It is also the process of , in effect , writing law from the bench . A judge ‘ s job and role in our system is to interpret the law . They are to do so within the constructs of the US Constition . They are to do so only within the US Constition , and not using other legal works , such as UN declarations …

.. [h/t — Newsmax.com]..
.. [link] to the blog news post …

.. there are other examples of judicial activism in D.C. . All she needs to do is to ” look down the hall ” at the U.S. Supreme Court . Ruth Bader Ginsburg is the quintecential judicial activist . One that is more recent is her fellow ObamaCrap appointee , Elena Kagan …

.. judicial activism is a cancer on the body politic and our legal system . It must be stopped , smashed , and then finally be crushed …

Advertisements

Posted in 2nd Amendment, constitutional opinion, legal theory, personal opinion | Tagged: , , , , , , , , | Leave a Comment »

… This Time the Government Got Caught [#sue and settle racket]…

Posted by paulfromwloh on Tuesday,August 23rd,2016

.. yeah , you heard it right .

.. it is fiendishly simple . The US government (currently in the thrall of the radical left) is sued by a so – called friendly interest group . Normally , the Government is required to go thru public comment and evaluation periods before enacting a regulation . Not with this . The ” sue and settle ” technique allows the government to circumvent this process . As a result , they get their desired result under the table , and enrich their interest group friends in the process …

.. [h/t — m.NationalReview.com]..
.. [link] to the article …

.. Neat , huh ?! ..

.. it is unethical , and , I believe , illegal . now thatit is out in the open , it is either useless , or is open to legal challenge , and to destruction …

Posted in personal opinion | Tagged: , , , , , , , , , | Leave a Comment »

… Victory for the Rule of Law [#IRS tax subsidies]…

Posted by paulfromwloh on Friday,January 9th,2015

.. the ruling in Pruitt v. Burwell [Sebelius] came through the other day . Oh , Boy , it was a doozy , and it was a winner ..

.. [h/t — m.NationalReview.com]..
.. [link] to the legal ruling ..

.. Pruitt is another case that takes on the I.R.S. playing games with the federal exchange subsidies in ObamaCrapCare . The plain letter of the law does not allow for them . The I.R.S. tried to push this through , and people have fought them , tooth and nail …

.. this time , for the first time at the district court level , a district court judge has sided with the folks attempting to make the federal government hold itself to the plain letter of the law . Judicial doctrine gives the government a certain amount of leeway to implement a law . However , they are only given so much leeway …

.. this leeway [“Chevron Deference”] does require the Government to follow the law . Sometimes , the Government can be a little creative in its interpretation . However , it cannot go too far . If the Government does not follow the plain letter , text , and intent of the law , then un – uh …

.. that is what Pruitt v. Burwell has done . It has also done more …

Posted in personal opinion | Tagged: , , , , , , , , , | Leave a Comment »

… Ambiguity in the Clean Air Act [& Amendments] …

Posted by paulfromwloh on Saturday,July 5th,2014

.. yes , it does matter .

.. you might ask , huh ? ..

.. [h/t — m.NationalReview//BenchMemos]..
.. [link] to the blog post …

.. an agency gets a certain amount of latitude in how to interpret a statute . That latitude , due to a certain US Supreme Court case [Chevron v N.R.D.C.] is referred to as ” Chevron deference . It is actually quite simple , as it is a two – prong test . Part One is Congressional intent . If Congress has clearly spoken , then that is it . Part Two is where things get a lot more dicey . If things are ambiguous , then is the agency ‘ s ” construction ” of the meaning reasonable and applicable to the statute . If not , then , down the drain …….

.. It matter a lot , because the ObamaCrap E.P.A. is using that ” Chevron Deference ” in order to be able to regulate ” greenhouse gases . ” If their interpretation is struck down , as I think is really possible , then His Lordship ‘ s ” Climate Change ” diktat is toast …

Posted in body of law, legal info, legal opinion, personal opinion, rule of law | Tagged: , , , | Leave a Comment »

… Bill , I think that You are Wrong …

Posted by paulfromwloh on Tuesday,February 11th,2014

.. what he and Dr. Charles Krauthammer were brawling about tonite on ” the O Reilly Factor ” was about the ObamaCrap Administration ‘ s ability to administratively fiddle around with ObamaCrapCare ” on the edges . ”

.. What I believe Bill was talking about was what is known as , legally , as Chevron deference . This refers to a legal case from almost 30 years ago , where the N.R.D.C. [the National Resources Defence Council] challenged an admininstrative action of the Environmental Protection Agency under Ronaldus Magnus .The N.R.D.C. did not like the enforcement action by the E.P.A. , and challenged the government in court .

.. as it turns out , I checked , and I did not have it quite right . The N.R.D.C. won at the District Court level . Since Chevron was an affected party , they could bring an action in court , and they did . They appealed , and the case went all the way to the U.S. Supreme Court .

.. This one went all the way to the U.S. Supreme Court . The N.R.D.C. ended up losing its case , and the legal precedent of administrative judgement was created . This is where the term ” Chevron Deference ” comes from . It is a two – prong test . In case you might wonder , the current IRS challenge to the tax subsidies , Halbig v Sebelius , is being fought under this legal standard .

.. [h/t — Wikipedia]..

.. [link] to the article .. remember , it is Wikipedia . However , when I have consulted it , I have had good result from it . Just take the results from your search with a grain of salt …

.. Back to Chevron . Well , it is a two – prong test . I am lifting the following from the Wikipedia article on ” Chevron Deference , ” because it is fairly easy to understand , even for those of us with limited to no legal knowledge …

Holding[edit]

The Court, in an opinion by Justice John Paul Stevens, upheld the EPA’s interpretation. A two-part analysis was born from the Chevron decision (called the “Chevron two-step test”), where a reviewing court determines:

(1) “First, always, is the question whether Congress has spoken directly to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court as well as the agency must give effect to the unambiguously expressed intent of Congress.”

“If the Court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction of the statute . . . Rather,

(2) [I]f the statute is silent or ambiguous with respect to the specific question, the issue for the court is whether the agency’s answer is based on a permissible construction of the statute.” Chevron U.S.A. v. NRDC, 467 U.S. 837, 842–843 (1984).

.. LEC again — basically in (1) , if Congress has spoken , that is it , folks . It is the end of the matter . If they have not , then you move on to (2) . In (2) , if the statute is silent , or is ambiguous , then is it a reasonable setup of the statute ? If not , then the agency ‘ s interpretation and action falls …

Importance[edit]

Chevron is probably the most frequently cited case in American administrative law, though some scholars suggest that the decision has had little impact on the Supreme Court’s jurisprudence.[4]

Eighteen years later Chevron itself was able to invoke Chevron deference to win another case before the Supreme Court. In a unanimous decision, the Court applied Chevron deference and upheld as reasonable an Equal Employment Opportunity Commission regulation, which allowed an employer to refuse to hire an applicant when the applicant’s disability on the job would pose a “direct threat” to the applicant’s own health. Chevron U.S.A., Inc. v. Echazabal, 536 U.S. 73 (2002).

Three recent decisions of the Supreme Court may limit the scope of administrative agency actions that receive Chevron deference to agency decisions that have the “force of law.”[5] This new doctrine is sometimes referred to as “Chevron step zero.”[6] Thus, for example, a regulation promulgated under the “notice and comment” provisions of § 553 of the Administrative Procedure Act would be likely to receive Chevron deference, while a letter sent by an agency, such as a U.S. Securities and Exchange Commission (SEC) “no-action” letter, would not.[7] However, an agency action that does not receive Chevron deference may still receive some degree of deference under the old standard of Skidmore v. Swift & Co., 323 U.S. 134 (1944).[8] The majority in Christensen v. Harris County, 529 U.S. 576 (2000) suggested that Chevron deference should apply to formal agency documents which have the force of law while Skidmore should apply to less formal agency documents in an attempt to draw a bright line for the question of “force of law” under Chevron step zero.

.. LEC here again — In this , it is the difference whether the agency ‘ s interpretation and decision carries the ” force of law . ” If it does , then Chevron deference . If not , maybe some level of deference , based upon the old standards …

.. in summation — I think what the ObamaCraps are doing with ObamaCrapCare is a gross misuse of ” Chevron Deference . ” The big thing for them is if someone is harmed by their actions ? Someone just might … . When someone is , then they have what is legally known as ” standing ” to challenge the action …. God in Heaven help the ObamaCraps if someone does , because they will lose , and lose badly …

Posted in accountability, constitutional opinion, legal opinion, legal strategy, personal opinion | Tagged: , , , , , , , , | Leave a Comment »