It's not clear why, but this week we have seen several new articles on Loper Bright and the end of Chevron deference, so your correspondent thought he would do a little collage.

First, we have Nicholas Bagley, a law professor at the University of Michigan. In an article at The Atlantic that's entirely worth reading, he points out that Chevron isn't likely to change much, because most regulations adopted by administrative agencies already fall under clearly-defined legal authority:

Sure, agencies sometimes push the legal envelope. And those cases tend to attract headlines, which is why they shape our thinking about the administrative state. They are the exception, however; agencies have clear legal authority to adopt most of the rules they’ve adopted.

A few days after Loper Bright came down, for example, the National Park Service banned bear baiting under a law telling it “to conserve … the wild life” of the parks. It’s very hard to see anything “illicit” about such a routine exercise of delegated power. The U.S. Code is full of delegations like this because Congress doesn’t have the bandwidth or the expertise to establish every detail of government programs. Instead, it writes general laws and instructs agencies to fill in the specifics. And agencies still get deference, even under Loper Bright, when they act within “the boundaries of th[eir] delegated authority.”

That describes most of what agencies do. […]

Don’t get me wrong, there are lots of dumb rules. It’s just that most of those rules are squarely within their agency’s remit. Although that doesn’t make them any less dumb, it does mean that pointing to Loper Bright and West Virginia v. EPA won’t help get rid of them.

All true, and worth keeping in mind for anti-regulatory legal warriors.

Then we have the highly intelligent, and highly controversial, Adrian Vermeule of Harvard Law School (that's ok, we don't hold it against him). If you keep track of controversies inside the legal academy, you will know that Vermeule, an expert in administrative law, is most notorious for his belief that conservatives should embrace a more active government—or at least, accept it as a necessity of modern life. We particularly appreciate his commonsensical observation, contra conservatives who want to put rulemaking out of the executive branch and back in Congress's lap, that it is Congress itself that has delegated that authority to the executive branch, and that it seems very happy to keep doing so and has shown, as a corporate body, approximately zero interest in taking these powers back.

Conservative lawyers attacked Chevron because they saw it as an infringement on the principle of the separation of powers and, in turn, see the separation of powers as a bulwark of liberty. However, Vermeule points out, the separation of powers does not, strictly speaking, protect individual liberty. What it does is make it hard to produce new legislation; this can protect liberty, but it can just as easily obstruct it, if new legislation would increase liberty. And so with Loper Bright:

Under the recent Loper Bright decision, which replaced the pre-existing Chevron regime, the courts will at least in theory pose more of an obstacle to the agency’s de-regulatory action than they did before. By fortifying judicial review of agencies’ statutory authority, Loper Bright hampers de-regulatory agency action as well as new affirmatively regulatory action.

[…]

[L]et me offer a concrete example. Recently, after the decision in Loper Bright overruled the Chevron decision and said that courts should interpret regulatory statutes without deference, “de novo,” a panel of the Eighth Circuit decided a case in which the plaintiff challenged a rule issued by the Surface Transportation Board. Distilling away the complications, the aim of the rule was to alleviate regulatory burdens on all parties by simplifying and streamlining the process for challenging the reasonableness of rail carrier rates, in cases in which a full formal hearing would be too costly given the stakes of the case — costly not only for the challengers, but for the regulated carriers themselves. The panel, citing Loper Bright, reviewed the Board’s statutory authority de novo and held that the challenged rule was inconsistent with that authority. The panel, in other words, rejected an agency’s attempt to lighten regulatory burdens. Increased judicial scrutiny of agency action under Loper Bright is a sword with two edges, hampering new de-regulatory initiatives as well as new regulation.

Finally, we turn to Curtis Yarvin. We believe we have never mentioned Yarvin here before, and do not envision that we will do so, save in exceptional cases. This is not primarily because of the odor of sulphur that accompanies Yarvin (we here at PolicySphere are open to ideas from everywhere on the political spectrum except the crazy left), but simply because Yarvin is a political theorist and philosopher, and PolicySphere deals with, well, policy. In some sense, Yarvin's project and the "project" here at PolicySphere (if there is one) are fundamentally at odds. Yarvin believes that the current American regime is fundamentally unable of producing good policy and that the fundamental issue in politics is to replace this regime with a new one (to be clear, Yarvin understands "regime" in a broad sense: this may not involve formally overturning the US Constitution, in his view, but, at the very least, a radical change in how it is operationalized in practice—and, after all, he notes, such changes of "regime" have happened before, under presidents such as Lincoln and FDR). If Yarvin is right, then what you're reading (and what you're working on, since most of our readers are interested in this stuff professionally) is pointless. Whatever the vices of the current "regime" (which nobody will dispute are plenty, we should think) or the virtues of a potential future one, we believe that it's possible to actually implement meaningful policy changes in this universe, which is why we believe it's important to have intelligent, qualified journalists and analysts covering that process. Which is why we founded PolicySphere.

Anyhow, after this long prolegomena: theorists, at their best, have the admirable virtue of being able to clarify what it is that is going on. Yarvin has another admirable virtue, rare among theorists: he's a lot of fun to read. His article on Loper Bright, while making a fundamental "it doesn't matter, none of it does" point that we disagree with, is still full of gems, such as this distillation of how "the system" works:

You see, when some agency, arm or tentacle of the USG accuses you of running afoul of some regulation, you have three remedies. The first is to call them up and chat. This almost never works but is almost always worth a try. The second is to submit. The third is to sue. When you sue—whom do you hire? Basically: Republican lawyers. […]

If these agencies did not constantly try to do insane things to honest companies which are just trying to make a rocket, there would be no market for Republican lawyers. But if there were no Republican lawyers, you can’t even believe the insane things these agencies would do. Would we have an economy? If you are not starving in the gutter right now, thank a Republican lawyer. You think I’m joking. I’m not ****ing joking at all.

As simplified as this is, it's basically correct. And it's why Loper Bright is a good idea:

So Loper Bright […] technically, in theory, makes it easier for your Republican lawyers to argue that the agency is doing something insane—or, in the holy language of the Administrative Procedure Act, “arbitrary and capricious.”

Spring that one on your wife next time you have a fight. “Arbitrary and capricious.”

Again, like a cat always landing on its feet, Yarvin always circles back to an argument about why None Of It Matters until we get the new regime. That's a debate that's beyond our pay grade.

He's still right about the crux of it: at the margin, Loper Bright puts more power in the hands of Republican lawyers, versus bureaucrats, who are overwhelmingly very-much-not-Republican.

And so, putting those three legitimate perspectives together, we have what we would believe is a good overview of what Loper Bright is: it's not an earthquake, because it doesn't affect most regulations (Bagley), it may even have unintended consequences and in some cases increase regulation (Vermeule), but it still helps Republican lawyers argue against stupid regulations and win more cases against stupid regulations (Yarvin), and therefore it's good. Seems about right to us.

Thank a Republican lawyer today. Lord knows they need it.

Policy News You Need To Know

#Healthcare — Over at American Compass, Chris Emper has a good article on how Republicans can actually offer something constructive on healthcare. We have said it before and we'll say it again: healthcare is the great orphan of American politics. Americans keep telling pollsters that they believe their healthcare sucks and that they think it's an important issue, but both parties are engaged in a conspiracy of silence about it. Our line is that Democrats don't want to admit that Obamacare kind of sucks and Republicans don't want to admit that Obamacare doesn't suck that much. Given how much of healthcare policy in the US is accomplished via the tax code, next year's tax bill could be an opportunity to do something. We also touch on this in our Quality of Life Agenda piece.

READ MORE: The Quality of Life Agenda →

#LGBT — We kept you abreast of developments in US vs Skrmetti, the case pending before the Supreme Court challenging Tennessee's law banning so-called "gender-affirming care" for minors. As we told you, the oral arguments were yesterday—and the opponents of the law did not exactly cover themselves in glory. Even the legacy press had to admit the supporters had the better arguments and now most observers expect the Court to uphold the law. If confirmed, it would be a big victory for sanity.

#AI — A coalition of academic computer scientists, liberal jurists, and Google employees have produced a gargantuan paper grandiosely titled "Shaping AI's Impact on Billions of Lives." It is supposed to be a set of policy proposals on how to manage AI. "We talked to luminaries such as recent Nobelist John Jumper on science, President Barack Obama on governance, former UN Ambassador and former National Security Advisor Susan Rice on security, philanthropist Eric Schmidt on several topics, and science fiction novelist Neal Stephenson on entertainment." It is, to put it politely, a mess. It's a brief for, as Marc Andreessen has put it, "AI communism." The authors are gung-ho on building "equity" into AI, which is a shorthand for, well, communism and race communism. Like everyone else, we have our doubts about AI, but a libertarian approach to the space is infinitely preferable to this noxious activist brew.

#Populism — One theme of the 2024 campaign has been, it seems, that you don't need to attack big business to be a successful populist. Still, this doesn't deter some in the Republican Party. And thus, the Journal reports, "Senators Dick Durbin (D., Ill.) and Josh Hawley (R., Mo.) will announce the Protecting Employees and Retirees in Business Bankruptcies Act of 2024, which is intended to increase recoveries for employees, preserve their benefits and place more restrictions on executive bonuses at bankrupt companies."

#RareEarths — In a preemptive trade war move, China banned exports to the US of key rare earths used in the manufacturing of semiconductors. Steven Glinert, founder of a semiconductor startup, has a good article on the implications. The long and short of it is: the US should get rid of regulations that prevent it from mining those rare earths itself.

#DEI — "Trump won, you don't need to do this anymore." The New York Post reports on the latest attempts by deranged activists to destroy one of the marvels of public education in the US, New York's specialized high schools. If you don't know, these elite science schools within the public high school system, Stuyvesant being the most famous, admit based on a competitive standardised test. They have allowed countless poor kids in New York to get a leg up in life. Among their alumni, they boast 13 Nobel Prize winners (this is more than the People's Republic of China) and one Fields Medal winner. Because of all the excellence, and because the schools, while very racially diverse, don't exactly reflect the racial makeup of New York City, left-wing activists hate them. Nothing shows the true face of far-left activists, one of sheer cruelty, than with their obsession with destroying elite schools for children. If Trump's victory means anything, it should mean that the cultural moment for this form of national sabotage is over.

#Science — We like to keep you abreast on developments in breakthrough science because, at least sometimes, breakthrough science quickly becomes a hot policy issue. A team in Switzerland enabled people with spinal cord injuries to walk again through something called "deep brain stimulation." The breakthrough here is that the researchers used a region not typically connected to walking, in effect rewiring people's brains. Here's the article in Nature.

#DOGE — Only 6% of federal workers show up in person on a full-time basis, according to a new report by Sen. Joni Ernst. If you exclude security guards and maintenance personnel, that number drops to close to 1%.