[blindLaw] Disability Rights and Public Health laws Put at Risk by Recent Supreme Court Decisions

[christophergbell at comcast.net]

Hi, Omar,
>From the perspective of basic civics, I agree with you.  But, I submit that the reality is more complicated and nuanced.
Even before the 1982 Chevron decision, Congress has relied on federal agencies to fill in the statutory gaps and sometimes those gaps are as wide as the Grand Canyon.  Take, for example, the regulations issued by HEW in 1977 to implement Section 504.  Section 504 itself was only 37 words long.  It was left to HEW to give meaning to the concept of "discrimination" in the context of individuals with disabilities.  Much discrimination law at the time focused on bias and intent.  Obviously, such a principle would not remove many of the barriers to participation in employment, etc., without the "program access", "reasonable modification of policies and procedures", the "provision of auxiliary aids and services, and similar requirements. Those standards did not exist in statutory law.  Because Congress has had 47 years to markedly change Section 504, one might think that those regulations are or should be safe from a facial challenge.  However, I think the recent Supreme Court makes just such a challenge very possible, and even likely. And, then there is the all important matter of web accessibility.  What will become of the recent DOJ Title II regulation requiring web and App accessibility. Would a conservative judiciary find those regulations valid under a 1990 statute passed before the internet existed?  I have my doubts.
While it is true that bureaucrats are unelected, so are federal judges (although they are appointed by the President and confirmed by the Senate).  More importantly, the "notice and comment "regulatory process makes it possible  for an agency to hear very critical, factual comments about the impact of the NPRM.  No federal judge will receive that degree of input via briefs of the parties unless there is a lot of amici participation. Finally, I don't see much guidance in the Loper Bright Enterprises decision  to guide the federal judiciary.  I think the Supreme Court has opened the door for a long period of judicial chaos.  When legal standards are finally settled by Supreme Court and Circuit court cases, I fear the disability community will be far worse off than we are now. 

-----Original Message-----
From: BlindLaw <blindlaw-bounces at nfbnet.org> On Behalf Of omar duncan via BlindLaw
Sent: Thursday, July 4, 2024 11:20 AM
To: Blind Law Mailing List <blindlaw at nfbnet.org>
Cc: omar duncan <oduncan821 at gmail.com>
Subject: Re: [blindLaw] Disability Rights and Public Health laws Put at Risk by Recent Supreme Court Decisions

I ain’t no lawyer but I do have a basic legal understanding from undergrad years and did a good amount of reading on it about chevron deference


I think it just means that congress has to pass those public safety laws directly or the courts rule it to be the case through presentment if the case relates to such a matter is adjudicated by the court.

It simply means that federal bureaucracy can’t make their own interpretations on existing laws and that they have less discretion


I do not think that is exclusively a bad thing or a good thing.


Perhaps it is both depending on the situation.

There are some matters like public health where it may be ideal for federal agencies to do agency imposed regulations.

By contrast, in some situation, we might be dealing with government overreach or situations where salaried, unelected bureaucrats have too much control instead of congress.


At the end of the day, the constitution enumerates that congress passes laws and that the federal agencies and president just enforce at the end of the day.



On Thu, Jul 4, 2024 at 8:14 AM christophergbell--- via BlindLaw < blindlaw at nfbnet.org> wrote:

> Public Health Laws at Risk as Supreme Court Curtails Power of Federal 
> Agencies https://medicareadvocacy.org/public-health-laws-at-risk/
>
> Chris Bell, JD
>
> Member, Board of Directors
> American Council of the Blind
> (612) 859-4938
>
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