It was only a matter of time.
I have a feeling -- not being a lawyer and not intimately knowing the US Law -- that the whole legal structure of the Federal Government will soon experience a tremendous shift. Alphabet agencies will stop having any kind of authority that the Judicial Branch never approved of. It will completely shatter everything we know about the feds, from drug regulations (FDA et al), to communications (FCC et al), to stock market (SEC et al), to worker/consumer rights (FTC et al), to immigration (USCIS et al)... There will be a period in the US history where no lawyer will be sure how anything can be relied on anymore because there will be this giant free real estate the Judiciary Branch can make precedents on whenever they want.
When congress passed laws to create these alphabet agencies, they thought they're assigning some amount of authority to them to "regulate", and they thoughts these unelected bureaucrats making up laws -- instead of the glacier slow Congress -- will let Congress off the hook. But they didn't realize that the Judicial Branch would ultimately see it as an existential threat to them -- because the authority to "interpret" law belongs to the Judicial Branch and not the Executive Branch -- and thus by doing so, they actually wrote a blank check to the Judicial Branch (ruled by another set of 9 unelected High Priests) to eventually determine all these things for the Congress. It's gonna take the Congress an unprecedented megaproject to take these powers from the Judiciary and exactly define each law as elected Congress sees fit.
I hope I'm tremendously wrong, but I'm expecting Armageddon-level legal change to soon follow in this country.
Right but it is not all as bad as it seems.
During the pandemic, we saw government agencies mandating all sort of things that seemed very out of scope for the agency. For example the CDC was dictating to landlords that they could not evict anyone: https://www.politifact.com/article/2021/aug/04/cdcs-new-evic...
There was no legal basis for this, a very good human one but you can't run a country on what we feel is best at the time. That is how we end up violating human rights.
> There was no legal basis for this
I pointed this out in a separate comment, but there is absolutely a legal basis for this. The CDC is the Center for Disease Control (emphasis on control), and so it's absolutely in their mandate to make regulations that prevent the spread of infectious diseases.
> you can't run a country on what we feel is best at the time
I hate to say it, but this is exactly how the country is run. "What is the best course of action?" "Put us on that course of action." Whether done with laws, orders, regulations, court mandates, etc that's exactly what we do.
The Supreme Court ruled that the CDC exceeded their authority and that it would take an act of Congress to change that: https://www.nlc.org/article/2021/08/27/what-to-know-about-th...
The current best course of action is how we got the the Interment of the Japanese Americans and Guantanamo Bay
If SCOTUS made the ruling, then the process worked as intended, even when the Cheveron deference was part of that process. Even when written by congress, not all laws that pass will pass judicial review.
> The current best course of action is how we got the the Interment of the Japanese Americans and Guantanamo Bay
The best course of action is also how Boar's Head products were recalled. How we decide to fix bridges before they fall. How we keep companies from forming monopolies. How we provide aide to states hit by hurricanes and wildfires. And so on...
And the Supreme Court correctly found that CDC had acted ultra vires.
As a person, you can do whatever you like so long as there is no law prohibiting it. Government agencies are the opposite; they can only perform functions provided by legislation.
CDC is primarily a research and guidance organization that has only once in its history had a say over the process of evictions. To argue that because there is a major disease outbreak, therefore this unrelated government agency gets to decide who lives in a house I own is not only insulting to my intelligence, it is offensive to my sense of liberty.
You live as a part of society, your liberty is going to be offended with every step you take. You're taxed. You're required to maintain your rental properties to a certain standard. You're required to have a license to drive your vehicle. The things you buy are required to not poison you. And so forth.
And let's be frank. A government agency has always had a word in the occupancy of your homes. Be it the state government or otherwise. Your property is built upon state property, after all.
And, if I'm being completely honest, I have absolutely zero respect for someone who is upset they couldn't fuck someone over at a time where unemployment was so high.
>You live as a part of society, your liberty is going to be offended with every step you take. You're taxed. You're required to maintain your rental properties to a certain standard. You're required to have a license to drive your vehicle. The things you buy are required to not poison you. And so forth.
Right and we have robust laws passed that allow for the regulation of each of those things. And court battles were fought and laws had to be amended to get us where we are today, so i don't get all this hand wringing that is going on because we are suddenly having to follow the established political process.
>And, if I'm being completely honest, I have absolutely zero respect for someone who is upset they couldn't fuck someone over at a time where unemployment was so high.
I am glad that you have no problem trampling on the rights of one set of people over another set because even though you may not see it as such, landlords are people too and they were absolutely getting "fucked over" at that time. They had the same bills to pay and food to buy that everyone else had to deal with as well.
>The things you buy are required to not poison you.
"We have laws against poison being in food therefore it's ok if a research organization funded by the federal government denies you your property rights" is a laughably contemptible argument. It falls flat on its face the second it leaves your mouth. Just admit you agreed with the ends justifying the means and stop pretending you care about democracy or rule of law.
>And, if I'm being completely honest, I have absolutely zero respect for someone who is upset they couldn't fuck someone over at a time where unemployment was so high
And what if I was the one who was unemployed while my tenant kept their job while refusing to pay because they knew my rights had been stripped from me?
I think the change is just going to be the courts utterly tied up with regulation challenges. The FDA, FCC, FAA et.al. can still write regulations on Congress' behalf, but they no longer have the final say, and the courts don't have to abide by their expertise.
And so I see the courts filling up with these exact lawsuits that will take years to resolve.
This was the status quo - well not quite, a separate decision effectively undid the 5 year limitation on challenging old regulations - but I think that companies are going to be a lot more litigious now than they were (and there's a lot more of them).
WRT this specific case, we'll have to see whether the courts issue an injunction to prevent the unlocking regulation to stop taking effect.
The removal of Chevron deference isn't the harbinger of doom everyone thinks it is: this standard is only 40 years old.
The combination with a different decision to remove the statute of limitations for new companies on old regulations does indeed make this a bit of a "doom" scenario. The courts are already backing up with these lawsuits, and it's going to only get worse.
It won't stop agencies from creating new regulations, but it's going to make enforcement depend entirely on the court that the lawsuits are filed in, and how backed up their caseload is.
The US isn't the same as it was 40 years ago.
I wonder how many of the things important to you are going to be Chevroned.
Does the law allow the FCC to mandate unlocking? If not, it doesn't matter how important it is to me if it is illegal.
There are many things that I think would be great for the government to mandate; free food for those who can't afford it. However, that would be the government just taking from companies with out payment and be illegal. Furthermore, if the government can just mandate that a company do something, they can also mandate the individual do the same. Congratulations, your house is now a soup kitchen.
Yes, the law did allow the FCC to mandate unlocking. They were given the ability to write regulations - which are a form of law - on behalf of Congress within their stated mission.
Just as, to use your food analogy, the FDA wrote regulations that make it illegal for companies from selling you rotten meat.
Here is part of the Act that gives the FDA power to mandate food safety: >IV. Food There is a distinction in food adulteration between those that are added and those that are naturally present. Substances that are added are held to a stricter "may render (it) injurious to health" standard, whereas substances that are naturally present need only be at a level that "does not ordinarily render it injurious to health
Broadly, the FCC is mandated to: >make available so far as possible, to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex, rapid, efficient, nationwide, and world-wide wire and radio communication services with adequate facilities at reasonable charges.
But I don't see anything in there that say they have the ability to mandate unlocking. You can argue that it falls under the "adequate facilities at reasonable charges" portion.
I certainly want the ability to unlock my device but is the FCC mandate legal or not?
IANASC but IMHO “efficient” grants power, in addition to the “adequate facilities at reasonable charges” you mentioned.
Remember, Congress can ban you from growing weed in your own garden and for your own consumption, on the basis that indirectly affects the interstate price. I think that the FCC regulating cellular modems is way less of a reach.
I think that is a reasonable argument, I had a similar thought when I copied the text out.
>Remember, Congress can ban you from growing weed in your own garden and for your own consumption, on the basis that indirectly affects the interstate price.
It was feed corn during the Great Depression, I have always thought that ruling was bullshit(I understand the end goal) but anyone is welcome to try and change my mind :) https://en.wikipedia.org/wiki/Wickard_v._Filburn
It basically opened the door for the Federal government to try and stick their hands in everything, for good and bad.
> But I don't see anything in there that say they have the ability to mandate unlocking.
That's because cell phones didn't exist when the FCC mandate was created. So no, you won't see cell phones (or attributes of cell phones) explicitly mentioned.
That said, cell phones are radio communication devices, which is something the FCC does indeed regulate. They have long history of regulating the manufacture and operation of such devices. Vendor lockin included (something that ATT tried and was swatted down for with landline phones).
And let's be honest, Congress has had decades to narrow the mandate of the FCC if they believed they were misbehaving when it comes to cell phone regulation. The FCC operates on behalf of congress, after all.
I would not expect to see anything that says cellphones or the like, I would expect to see something that allows them to mandate the kind of communication equipment or characteristics of the communication equipment.
We had landlines for a long time before cell phones and the phone company was AT&T. They didn't allow a customer to buy another phone and hook it up to their network, you rented it from AT&T.
At some point that changed, I don't think AT&T gave that up out of the goodness of their heart. It was probably from a FCC mandate or law, which would in turn give the FCC ground here. If not, then it is and oversight that should be corrected.
Sounds like rotten meat is back on the menu.