The Doc of the Day is a link to an article posted on Defense firm Taft/’s website and reprinted on Lexology. If you are going to fight for your rights and be part of the movement to give access to our courts to the ordinary working person, you should sign up for daily emails from Lexology. It is free.

It is important when debating to understand your opponent’s argument, even before your opponent makes that argument. (I was on debate team throughout college and while at Taft High School, coincidentally named, which had one of the finest academic records for a public school in the nation.)

You don’t need to agree with your opponents to listen to what they have to say.

The Taft/ author, Sohan Dasgupta, Ph.D., got it all wrong. Judge Lee P. Rudofsky makes the same mistake.

Dasgupta claimed the defenders of Chevron U.S.A. Inc. v. NRDC “maintain that the federal agency in question knows best what the statute it routinely applies means. Unsurprisingly, that assurance does not satisfy Chevron’s detractors. Even if that is an accurate understanding of administrative practice, Chevron’s critics contend, this abdication of the judicial role allows the executive to color outside its lane and to set aside any concern about democratic accountability.”

First, I must edit the Doctor of Philosophy’s prose. He mixed metaphors. Either the executive colors outside the lines or drives outside his lane, not both.

Back to the legal principals behind the Chevron Doctrine. Critics like Judge Rudofsky don’t really want the executive to stay in his lane; The supposedly “Federalist” judges want exclusive use of the road.

As explained by Dr. Dasgupta, the Chevron “doctrine stands for the overall proposition that unless a federal agency’s interpretation of a statute is unreasonable, the agency effectively gets to decide what an ambiguous statute means. Federal judges must, in those circumstances, heed the determinations of executive branch bureaucrats, both in executive agencies and independent ones.”

He continues that Chevron’s critics “sometimes also believe that the executive branch has its own tendentious view of the law, which will affect its interpretation — a deficiency from which neutral federal judges do not ordinarily suffer. While presidential control of the political appointees in executive agencies is, of course, direct — career civil servants, on the other hand, enjoy insulation from removal by the president, who is the head of the executive branch — independent agency co-heads often are removable only for good cause.”

Herein lies the fallacy. Judge Rudofsky and his ilk claim it is not Constitutional to have appointed agency heads who cannot be removed, barring an act of God. Have you ever tried to have a federal judge removed? People have tried to have Judge Rudofsky removed, not from the bench, only from a single case. It is a daunting task.

Rudofsky not only interprets the legislature’s unambiguous language improperly, he reinvents the meaning of litigants’ rendition of the facts of the case. Then he dares the litigant, take it to appeal (which translates into the judge’s native New Yorkese as “so sue me”).

Adding insult to injury, judges invented the doctrine of Absolute Judicial Immunity, which makes it impossible to sue a judge in civil court for running all over your rights, no matter how malicious his motivations. (The executive branch enjoys the slightly lower protection of the doctrine of Qualified Immunity.)

The Rudofskys roll right over the legislature, then back up to run over litigants, then speed away spreading a bed of roofing nails behind them that are sure to disable law enforcement’s pursuit. This is the road they want our nation to be on.