Chevron and the professional Republicans

"If you are not starving in the gutter right now, thank a Republican lawyer."

Some of my best friends are professional Republicans. Really. There’s enormous love. But—

Generally speaking, it is always better for your career to be a professional Democrat. But there are a few weird exceptions to this rule. One of them is when you’re an elite lawyer—because the Republicans get about as many judicial nominations, and thus as many judicial clerkships, as the Democrats. While it’s always better for your career not to be right-wing, it’s also way better to have been a Supreme Court clerk.

Moreover, there is a whole army of Republican administrative law firms ready to hire these young superstars, because the nation’s entire productive sector—or whatever is left of it—is constantly under some bizarre regulatory assault, like Elon’s problem of killing sharks with his rocket, from the hilariously undemocratic administrative state. Since Republicans are the party of democracy and Democrats the party of oligarchy, it makes sense to hire Republicans to defend the real America from the legal America. If “administrative law” is even legal—which it obviously isn’t.

But oddly—one of the main Republican causes appears to be perfectly inverted. Even worse, this is not just a problem with the old-school Mitch McConnell Republicans—as much as a problem as these people are. They’re a huge problem. But this problem, I am sorry to have to tell you, lives and festers at the heart of DOGE itself.

You see, these legal Republicans—this party—may Allah forgive me for calling them their true name—these Federalists have won a couple of big victories recently. In the American sanctum sanctorum, the holy of holies, the Extreme Court. I mean, Supreme. As dogemeister Vivek (rhymes with “we wake”) writes:

The Supreme Court overturned so-called “Chevron deference” earlier this year which is a seismic blow to the federal bureaucracy.

Under the old doctrine, federal courts deferred to agency interpretation of ambiguous statutes. As of 2024, that’s no longer the case.

The overturning of Chevron deference, combined with the Major Questions Doctrine enshrined in West Virginia vs. EPA, paves the way for not slight but *drastic* downsizing in the scope of the federal regulatory state.

These cases—Loper Bright and West Virginia—are, at least in theory, direct attacks on the legal infrastructure of the administrative state. (Loper Bright is a hard 7 on my scale of epic case names, in which Humphrey’s Executor is a perfect 10. West Virginia is a 1. Sad! But doesn’t “Loper Bright” just sound good?)

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. You see how the great food chain of life is functioning here. This is the genuine Tao.

The solution is part of the problem. The problem is part of the solution. 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 fucking joking at all. This is the Tao. Nothing is more serious than the Tao. Mammon is just one aspect of the Tao.

So Loper Bright (repealing the “Chevron deference” doctrine, which sounds like when your wife gets tired of you driving around for a cheap gas station, and West Virginia (reinforcing the “major questions” doctrine), 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.” Admit that you don’t exactly know what “capricious” means. But, like a nice caprese, it must involve goats? Your arbitrary, goatlike Federal regulator. Springing his arbitrary launch delays on you, with his little goat horns. Congress did not tell him to do that!

Technically, according to the sacred rules of precedent, stare decisis, literally inherited from the motherfucking Romans, it is now easier for your Republican lawyer to argue, before a judge, that the regulator has, like a goat leaping a fence, exceeded the holy democratic authority with which Congress, that very democratic institution, anointed him when, in 1971, Nixon signed some bill that said something like “save the fish.” Sharks are fish, and rockets are dangerous to sharks and other living things—QED.

This is the culminating achievement of the Trump revolution: to make life easier for Republican lawyers. To make it more likely to win their cases—before all these judges, so deeply learned in the law, so sensitive to the precedent of their Supreme masters. Lol.

Obviously there are Republican judges and Democratic judges. Democratic judges don’t give a crap what John Roberts thinks—what is he going to do? Arrest them? And if Republican judges dare to decide an agency is being arbitrary and capricious now, they could have done the same then. They are not being arrested either. Not even under Biden! Not even under Harris! They are not even being fired. They serve for life. And life, wouldn’t you say, is good? It’s pretty good for a good Republican lawyer. And you don’t get to tell me they don’t deserve it. They absolutely fucking deserve it. And the Republican judges, ten times as much. And yet—

Just think about the irony here. Which is the least democratic party? The Democrats. Which is the most democratic party? The Republicans. Which is the most democratic branch of government? The executive branch. Which is the least democratic branch? The judicial branch, obviously. The incumbent may always win, but at least there are still elections. That leaves Congress in between. At least it’s kind of democratic. If you don’t look too close.

So the cause of the Republican lawyers is to capture power which is nominally in the hands of the most democratic branch, but currently in the hands of a less democratic branch, and move it to—the least democratic branch.

Down with the administrative state. Up with—the imperial judiciary? What? Well… it does happen that Republicans have a 6-3 majority on the Supreme Court… of course, not to imply that judges are partisan… wouldn’t want to think that… this is all about the principles of government that our Founders, Moses-like, left to us…

Again and again, we see this situation where, in the political air, these vast ethical theories are invoked, these vast battles of rhetorical are fought, and—on the real ground of real government, the battles are real. But they are hopelessly tiny and hopelessly defensive, almost comically out of proportion to the apocalyptic rhetoric.

Repealing Chevron deference was a generational goal of the Federalist Society—like repealing Roe, for the pro-lifers—like the Anschluss, for Hitler. And what in the end does it mean? Well—let’s just say—it’s not exactly the next Anschluss.

The reality, I fear, is that, before and after Loper Bright, progressive judges are going to defer to progressive agencies, and conservative judges are going to defy them. It is a bit harder for the judge, or to be realistic the judge’s clerks, to write the deferential opinion. It is a bit easier to write the defiant opinion. But…

Vivek, a numbers guy, writes in the same tweet:

Lower federal courts have relied upon Chevron somewhere between 17,000 - 19,000 judicial opinions.

A 2022 study found that federal appellate courts applied Chevron in ~85% of cases involving federal agency interpretations of law interpretation is at stake. In ~60% of these cases, the court concluded that the statute was ambiguous (“Chevron Step One”) and proceeded to determine whether the agency’s interpretation was reasonable (“Chevron Step Two”).

Once federal courts of appeals reached that point framework, they sided with the agency 77% of the time. A separate study evaluated more than 1,300 courts of appeals cases from 2003 to 2013 & found a 94% rate of judicial deference to the agency position, at Chevron Step Two.

Sounds like a big deal to me! What do you think those “Chevron Step Two” numbers will go down to, Vivek, after Loper Bright? Depending how you measure? From 94% to… gosh, maybe even down in the ‘80s? Well, a career Republican can dream. Isn’t his place in Delaware a little cramped? A newer boat would save on maintenance… hasn’t he been living pennywise, pound foolish? Doesn’t he, after all, deserve it? For his work?

Under the tyrannical reign of Chevron, these blind servants of neutral, logical justice had no choice but to defer to the agencies. Now the judges can rise up, and stand up for what they know to be just! Granted, they can still defer. They don’t have to defer. And that will make all the difference. Lol. I mean, what the fuck. I mean, what are we even doing here?

Everything in America that isn’t a university, a hospital or a tech company is rotting, on fire or both. Literal alien hordes are marching across our borders in numbers that make the migration of the Visigoths look like a field trip. 40% of Americans are afraid to walk outside their homes alone at night. Our scientists, for no logical reason at all, invented a virus that killed 20 million people, then covered it up. Many suspect this, but no one really knows it. No one has been punished. No one will be punished.

The government borrows a third of the money it spends. It sponsors a civil war in the Ukraine, for no logical reason at all, which has killed 500,000 people. No big deal. Sure whatever. It sucks but anything else would certainly be worse. It’s the worst system of government, except for all the others. Besides if you’re right, no one could handle it. Also, look on the bright side. Before, the judges had to defer. Now, they don’t have to. And that will make all the difference.

All this energy—all these political hopes and dreams—and what does it go into? Billable hours for 135-IQ Republican lawyers. What do you think they charge an hour? Is it still in three figures? Lol.

Everything is fake. Everything is a scam. This is not a blackpill. It is a whitepill. Once everyone realizes that everything is fake—anything is possible. Until then, we’re still shooting at the red dots. “DOGE.”