Clearing the air on vigilante journalism. AG Weiser's remarks on the Chevron decision with my thoughts. Prop 131: some thoughts for consideration.
Clearing the air on vigilante journalism.
If it's weird to quote oneself (I feel a bit weird doing it), forgive me but I want to share the last few words of my recent op ed:
"Individuals, groups, and the media inserting themselves into the process of air pollution violations is fraught with all kinds of potential problems, enough that I think fairness to all demands that the first stop for people with concerns should be the government. Additionally, the first thing out of a reporter’s mouth if someone calls in a tip to them ought to be 'when it becomes official with the government, I’ll report on it'. Doing otherwise is just this side of vigilantism, and we should save that for the movies."
I have noticed with dismay how little care the media take in reporting on science. Since air quality measurements (and the instrumentation to do so) can take a fair bit of care and knowledge, this lack of caution and thought displayed by our media doubles my concern when we are talking about non-governmental agencies or individuals reporting their own measurements.
Pollution measurements taken by individuals and sent directly to the media by way of attempting to shame or "out" someone they think is breaking a law is fraught with potential problems and the potential for abuse.
More on this and an example to share in my recent op ed below.
https://pagetwo.completecolorado.com/2024/10/18/gaines-clearing-the-air-on-vigilante-journalism/
AG Weiser's remarks on the Chevron decision with my thoughts.
I heard of AG Weiser's lecture to CU Medicine's Farley Health Policy Center in the Firearm Injury Prevention Institute's newsletter I am subscribed to.
I signed up and listened. I had hoped to share a recording of this talk with you because the questions asked of our AG were as revealing (in terms of the politics and concerns of those CU doctors and faculty attending) as the talk itself.
I did make screen recordings, but in asking, I was told that the recording itself was not public and so I'll respect that. I can, however, offer you the talk that AG Weiser gave. The first link below is to his own page with his prepared remarks.
There is a lot in this talk, but I want to focus on a couple of themes (one of them a repeat for AG Weiser) . Both of these themes are typified in the following quote (footnote links left intact for the curious)
"Unfortunately, Justice Kagan’s critique of the majority as making an important decision without regard to its consequences is hardly unique to Loper Bright [Loper Bright is the recent decision that overturned the Chevron Doctrine]. Indeed, it is increasingly a feature of recent Supreme Court decisions ranging from rolling back protections for reproductive rights to inviting constitutional challenges to gun safety protections to prohibiting the use of diversity as a goal in college admissions.[19] In all of these settings, like in Loper Bright, the Supreme Court overturned a long-established precedent, fueled litigation, paved the way for legal uncertainty, and established a heightened role for itself vis-a-vis other institutions."
Abstracting out and rephrasing Weiser's critique of the US Supreme Court's decision overturning the so-called Chevron Doctrine,** you arrive at two main points.
1. That the US Supreme Court returning decision making authority to the courts instead of the bureaucrats is foolhardy. This is because courts cannot be trusted to make the "expert" decisions that the government workers running government agencies, by virtue of their subject matter expertise, can.
2. The court's decision overturns a precedent and thus makes for more legal uncertainty; those Supremes have bought themselves, businesses, and all of us quite a problem.
With point 1 above, AG Weiser lands on a big bone of contention, especially of late: who makes the decisions in our country? Prior to the recent decision Weiser highlights, unappointed bureaucrats at regulatory agencies had a near absolute authority in certain circumstances.
Don't misunderstand me. There is a role for the kind of specialized knowledge that agency experts can bring. Weiser himself cites just such an example when discussing Medicare rules and policy. There is a wide gulf between advising a particular course and deciding on it, however.
To protect the rightful sovereignty of the people in this country, advising alone should be the proper role of regulatory agencies. After all, to have them making decisions that they are not explicitly told to make by our elected officials, and to have those decisions above any sort of review, would seem to elevate the administrative estate to that of a co-equal branch of government!
If those we elect leave an ambiguity in law, is the necessary and proper role of one of the ORIGINAL 3 branches of government outlined in the Constitution to fix or decide the issue, not some unelected, unknown, and unaccountable bureaucrat.
Perhaps our ultra-progressive AG is comfortable with this set of circumstances (particularly when they make the kinds of decisions he agrees with), but it's not something I want. Whether we agree on policy, I hope you can see that it shouldn't be what you want either. What happens when those decisions don't go your way?
Lastly, I want to touch on one more assumption undergirding Weiser's arguments here. This is the belief that government experts are the only experts with valid opinions, and that they can be trusted to be neutral, dispassionate, decision makers. Neither assumption is true. I think the last few years have been a hard lesson on the fallacy of this kind of thinking. We should not give sole authority to those that may have an agenda or faults in their thinking. The ultimate decision should be informed by multiple perspectives and weigh multiple consequences.
Regarding point two above, Weiser's repeated contention that overturning precedents leads to chaos and uncertainty, I would say that I agree at the potential for uncertainty, but I think that the uncertainty can be healthy, especially when that uncertainty ultimately results in more centrist outcomes that better reflect the diverse needs and values of Americans.
As I wrote earlier regarding Weiser's less-measured response to another US Supreme Court ruling (the Dobbs decision--see my earlier newsletter linked second below), perhaps this is less an invitation to problems than a refreshing, an adjustment of our government back to center from its earlier, decided lean in one direction.
Yes, this may result in some court battles as we all (US Supreme Court included) come to terms with the details of their recent big decisions, but thus the nature of having a variety of perspectives looking at things and deciding what's best.
Weiser's concern here seems to reside in the idea that we were on the path to perfection before, that policy and court decisions are a one-way street where progress can be defined by measuring how far down the street we are.
I reject that notion. There are times when it's appropriate to have a course correction; times when it's right and proper to rethink, back up a bit, and take a side route. A second look at earlier decisions is not wrong, but it most assuredly upsets those that have a vested interest in the way things are currently going.
If you took nothing else away from this, I hope it's the following: I want you to understand that no matter how many footnotes and how dressy legal scholars and judges make things, the issues at hand are still understandable by regular people and that, as often as is not, what all this fancy language boils down to is lots of words in justification of an opinion.
Weiser here thoughtfully fleshes out his concerns, but remember his are not the final words on the topic. They are just his two cents' worth.
**The Chevron Doctrine was a longstanding precedent that said, in essence, the court should defer to regulatory agencies in deciding legal controversies under certain circumstances. The precedent stated that when Congress left some ambiguity in statute re. the authority to make decisions or policy, the implicit assumption was that Congress WANTED the regulatory agency to have complete and total authority. Thus the courts should defer to the regulatory agency and not make its own ruling.
https://coag.gov/blog-post/health-care-policy-in-the-post-chevron-age-cu-anschutz-10-10-2024/
https://coloradoaccountabilityproject.substack.com/p/no-ag-weiser-scotus-is-not-aggressive?utm_source=publication-search
Prop 131: some thoughts for consideration.
A reader sent in the letter below. It was some thoughts on Prop 131, a novel take on one of the drawbacks. In particular, it details a potential fault in the process should 131 pass.
If you've not voted yet, give the letter a look and some consideration. If you have questions for the authors, there's an email at bottom where you could write.
https://docs.google.com/document/d/1A__LQudNg9eo3ECi5Rt1gpkXqstrrNbQ/edit?usp=sharing&ouid=105405937749106967542&rtpof=true&sd=true