Jan 12, 2017

Chevron In Danger?

     From TPM:
… Yesterday, the House of Representatives passed a bill that could cripple the ability of government to regulate private industry.  
The bill modifies the Administrative Procedure Act … 
The Supreme Court ruled in 1984 that the courts could only overturn rulings that were “arbitrary and capricious, an abuse of discretion.” In other words, the courts would have to defer to the regulatory agencies in finding whether a ruling was justified. But the Republicans in the House passed a law that would allow the courts to rule without giving deference to the regulatory agencies. A Republican court could, for instance, overrule decisions of the Food and Drug Administration or the Environmental Protection Agency on concocted Constitutional grounds – say, by arguing that it violated the “takings” clause of the Constitution. That could cripple the regulatory agencies. ...
     Apparently, this would end the Chevron deference. How could this affect Social Security? It would make it far easier to challenge the agency's interpretation of the statutes. Any change in the APA is hugely important.

12 comments:

Anonymous said...

It also codifies the definition of substantial evidence as:

"such relevant evidence as a reasonable mind might accept as adequate to support a conclusion in light of the record considered as a whole, taking into account whatever in the record fairly detracts from the weight of the evidence relied upon by the agency to support its decision."

Anonymous said...

4:41 here again.

To be clear, removing Chevron deference and defining substantial evidence as above could, in effect, require the Courts to apply a de novo standard of review rather than an abuse of discretion standard of review. This shifts the standard of review to the opposite end of the spectrum, in claimants' favor.

Should make for an interesting few years of judicial review.

Dat;gov said...

Personally, I doubt that SSA hearing decisions are given much in the way of "Chevron deference" {which is more based on administrative rule making with a supporting recprd, rather than fact-finding or adjudication} in day-to-day US District Court and Court of Appeals decisions. Regional Counsel brief do not argue that ODAR are "the disability experts" and that SSA has decades of administering claims just like the one presented by This Claimant. Yes, there may be some lip service but limited respect to to observation and gut-feeling of the ALJ at the hearing, and even less that the Agency/employees have specialized experience and knowledge from years of holding hearings. -- Some of you are LOL that making-the-same-mistake over-and-over is not experience. The Agency fronds of "sit and squirm" test language in decisions. Also, the Agency does not write its decisions with a claim of expertise -- which some other state & federal agencies include as part of their boilerplate.

Anonymous said...

@6:28

Arguing that ODAR are "the disability experts" is exactly what regional counsel briefs argue. Every single time.

In regards to deference to observations and gut-feelings made by ALJs either at the hearing or in their decision, it is rare to see such subjective statements written down, meaning the courts cannot reverse on such grounds. More importantly, ALJs decisions must be based on evidence adduced at the hearing and relying on sit-and-squirm observations denies the claimant their right to respond to such evidence prior to the decision being made.

Finally, in regard to the agency's boilerplate not containing any claim of experties; that is irrelevant under Chevron deference. Expertise is (or was, hopefully) presumed as a matter of law.

Anonymous said...

The commenters have no idea what they are talking about. Chevron deference has nothing to do with substantial-evidence review in an ordinary disability case.

Anonymous said...

@12:55

4:41 here

I do have an idea what I am talking about. Go read the actual text of the Regulatory Accountability Act of 2017.

If I was unclear, the elimination of chevron deference allows the courts to consider SSA's arguments as to their interpretation of the Social Security Act/regulations and a claimant's interpretation from a neutral perspective. Codifying the concept of "substantial evidence" from the Richardson definition, that being "more than a scintilla, but less than a preponderance" to "adequate to support a conclusion in light of the record considered as a whole" is also noteworthy.

Here:

https://www.congress.gov/bill/115th-congress/house-bill/5/text?r=538993

Go to sections 107 and 108.

Anonymous said...

Why is codifying the substantial evidence standard noteworthy, when courts have already been applying that standard based on Richardson?

Also, the change would NOT make review de novo, if that's what you're suggesting. By definition, substantial evidence review cannot be de novo.

Anonymous said...

@7:32

If the term "substantial evidence" is literally codified as considering the evidence in favor of denial, in "light of the record considered as a whole," how is this not directing the courts apply a de novo standard of review?

Do not get me wrong, I agree they are two entirely separate standards of review, or at least were.

How do you see this language being applied by the courts, as it clearly departs from the Richardson holding significantly?

Anonymous said...

9:02,

The proposed language is nothing more than a reiteration of the substantial evidence standard set forth in Richardson and another Supreme Court case, Universal Camera Corp., which already includes language that the reviewing court "must take into account whatever in the record fairly detracts from" an agency decision. It doesn't change the existing standard, it just codifies it.

A de novo standard of review would mean that the reviewing courts acted as ALJs and independently weighed the evidence to decide whether the claimant was or was not disabled. It is not possible to review something de novo for substantial evidence. They're inconsistent concepts.

Anonymous said...

The proposed language lacks reference to "less than a preponderance of the evidence." This language is present in Richardson but lacking in Universal Camera Corp. Richardson was issued in 1971, while Universal Camera Corp was in 1951. Richardson clearly raised the standard for claimants. Actually, it would be more accurate to say it lowered the standard for the Administration.

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Anonymous said...

Chevron is most certainly in danger. SCT nominee wrote this in Guitierrez-Brizuala v. Lynch:



There’s an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the fact is Chevron and Brand X permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth.

In enlightenment theory and hard won experience under a tyrannical king the founders found proof of the wisdom of a government of separated powers. In the avowedly political legislature, the framers endowed the people’s representatives with the authority to prescribe new rules of general applicability prospectively. In the executive, they placed the task of ensuring the legislature’s rules are faithfully executed in the hands of a single person also responsive to the people. And in the judiciary, they charged individuals insulated from political pressures with the job of interpreting the law and applying it retroactively to resolve past disputes. This allocation of different sorts of power to different sorts of decisionmakers was no accident. To adapt the law to changing circumstances, the founders thought, the collective wisdom of the people’s representatives is needed. To faithfully execute the laws often demands the sort of vigor hard to find in management-by-committee. And to resolve cases and controversies over past events calls for neutral decisionmakers who will apply the law as it is, not as they wish it to be.