By Lawyers, For Lawyers

I swear, there should be a warning in the masthead at Volokh Conspiracy which states:  “If you are not a lawyer, most of what follows will be incomprehensible.”

As is their latest post (via Insty, who is also a lawyer and therefore unaware of the consequences of links to this website). Will Chevron Get the Lemon Treatment?  talks about SCOTUS judgements called Lemon and Chevron  without any explanation (however brief [sic] ) of what those judgements were or what they mean to our society or polity.

Even a link to each would have sufficed, but no doubt m’learned friend was too busy to supply one.

Well, I did a quick search, so here’s the Lemon Test and here’s Chevron.

No need to thank me, it’s all part of the service.  Even knowing the facts, Adler’s post is just barely readable.  Fucking High Priests need a reality check.


  1. Kim, if it helps, that was a very poorly written article. And it’s not because of anything cryptic in the law — it’s because the author is a shitty writer who doesn’t know his audience.

    Here’s my translation, pro bono, of course:

    In Lemon v. Kurtzman, the Supreme Court created a three-step test to decide whether a law that might run afoul of Constitution’s prohibition on government support of religions actually does so. The Supreme Court rarely applied its own test, even though it has been around for 50 years, and lots of lower courts applied it. The other day, the Supreme Court overruled it because it required a silly, unworkable, and subjective analysis.

    The author questions whether the fact that the Supreme Court overruled Lemon means that it may also overrule itself in another case, Chevron v. Natural Resources, which created a two-part test to evaluate whether a government agency is entitled to deference from Courts (like deference to Congress on the factual basis for a statute) on its decisions regarding the implementation of regulations allowed under a given statute.

    Do Lemon and Chevron have the slightest thing to do with each other? Nope. Not a fucking thing. The author is only writing about the two tests together because both cases, kind of, go to the question of the extent to which the judiciary should intrude in and upon legislative or regulatory decisions, and he thinks that the decision to overturn Lemon might inform on the politics of the Court which might lead them to consider overturning Chevron. He concludes that Chevron isn’t going anywhere – courts will continue to defer to regulatory agencies in their judgments – and he’s right.

    The only reason Adler wrote the post is because he’s a regulatory wonk and is terrified that Chevron will be reversed, so he decided to write a panic post. Why did he want to write a panic post about something he knows isn’t going to change? I have no clue.

    1. Thanks, 10b5 (a rule I try assiduously to avoid, btw), for explaining this so well.

      I’ve been practicing law for 40 years and the Lemon case somehow slipped by me.

      I hope that SCOTUS will over-rule the odious Chevron decision.

      As a tax lawyer, I know that the IRS must be a nervous wreck about challenges to the unauthorized administrative regs it has promulgated over the years.

  2. My contention is that congress no longer passes any real laws (we have to pass the bill to find out what’s in it). Instead, they pass a poorly written unicorn fart and then rely on the federal bureaucracy and individual departments to come up with the nitty gritty details. And the Chevron case basically allowed it. This is how you get the BATF stating that folding stocks are legal, illegal, maybe illegal, depends, etc. on a weekly basis. Or that bump stocks are legal, illegal, grandfathered, not grandfathered, etc. If you think that’s bad, try getting the EPA to give clear guidance on a chemical plant application for permitting new construction. We are no longer a real republic, we are ruled by a petty bureaucracy of incompetents.

    Hidden behind the recent gun and abortion ruling, the court may be telling congress that they actually need to do their job and not allow the bureaucracy to rule instead. That’s my hope anyway.

    1. Actually, with the reasoning of the two recent cases, I think the only way there could be a national consensus on Abortion is if the states formed a commission, like the one that created the Uniform Commercial Code or the Uniform Building Code, or any of the other Uniform Codes.

    2. re — petty bureaucracy of incompetents
      Eugene, Oregon.
      We are ruled by children.
      The vast majority of our bumblebrats are in their first job out of university.
      They are shockingly lacking in Real-World experience.
      They are terrorfied of making a mistake, announcing their incompetence and requiring somebody to question the value of their contribution to society.
      On a completely non-related note:
      * The photograph of squirming corpses on pikes.

  3. Not a lawyer, but I did not find it particularly hard to follow. It does assume some prior knowledge of these cases, but if one follows SCOTUS much there is much discussion on these cases so that is not that much of a stretch.

    As noted by others, not greatly written and more specifically not great analysis. Too jargon-y for a general piece and not in depth enough for a detailed piece,

  4. What would we do without lawyers?

    …….Eh…….Er………Could it get worse?

  5. re — Lemon Test link
    Any time I read or hear ‘exact same’, they just lost my respect.
    For example, compare the humble completeness in this:
    “I have that book”
    … to…
    the self-importance proclamation in
    “I have that exact same book.”
    Further, anybody using the Valley-Girl slang ‘actually’ is instantly disqualified from participating in any adult conversation.
    I think my work here is done [dusts hands in satisfaction].

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