Paul L. Caron

Tuesday, February 25, 2020

Justice Thomas, In Lone Dissent, Thrashes 'Chevron' and His Own 'Brand X' Decision

National Law Journal, Justice Thomas, in Lone Dissent, Thrashes 'Chevron' and His Own 'Brand X' Decision:

Justice Clarence Thomas on Monday sharply criticized his own majority opinion in a 15-year-old telecommunications case and an underlying decision that says courts must give deference to agencies interpreting their own regulations, urging his colleagues to reconsider both rulings.

Thomas wrote alone in an 11-page dissent that said the Supreme Court should have agreed to review the tax case Baldwin v. United States. The Baldwin petition, arriving from the U.S. Court of Appeals for the Ninth Circuit, had asked the justices outright to overrule Thomas’s 2005 decision in National Cable & Telecommunications Assn. v. Brand X Internet Services, a regulatory case that said a federal agency had correctly interpreted the Communications Act of 1934.

Thomas used the Baldwin case to raise and advance his concerns about his prior Brand X decision, and the underlying doctrine called “Chevron deference,” a bedrock part of administrative law that says courts generally adopt agencies’s views, if reasonable, of their rules. That deference has drawn criticism from conservatives members of the court, but no justice has moved to overturn the 1984 ruling.

“Even if the court is not willing to question Chevron itself, at the very least, we should consider taking a step away from the abyss by revisiting Brand X,” Thomas wrote in Monday’s dissent. Quoting a statement from the late Justice Robert Jackson in a 1950 ruling, Thomas said: “It is never too late to ‘surrende[r] former views to a better considered position.’”

Fox News, In Supreme Court Dissent, Thomas Cites Thomas in Arguing to Overturn Decision Authored by Thomas

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Is denial of standing to even challenge a tax break for someone else as unreasonable much more of a rule-of-law and checks-and-balances concern? Consider the (Clinton Treasury's) "check the box" regulations' take on "corporation" tax for "limited liability companies" that might not seem very different - but only where they are not publicly traded, locking out us regular folks.

(Nice to see TCJA has now made the total two-level tax on corporate business income pretty close to the top ordinary individual and pass-through rate.)

Posted by: Anand Desai | Feb 26, 2020 9:52:12 PM