The US Supreme Court Looks Set To Limit Federal Governance And Restore Power To We The People

Are we truly a nation of, by, and for the people, as Lincoln put it, if our elected representatives aren’t the ones actually making the decisions affecting our lives? For a long time they haven’t been making many of those decisions, too, having essentially “outsourced” them to judges and bureaucrats. But two cases currently before the Supreme Court could help remedy this problem and force Congress to do its job — and could restore power to the people...

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he two cases are Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. U.S. Department of Commerce. And what instigated them well illustrates the perils of letting unelected officials, whose unelected status places them beyond the people’s corrective reach, issue life-altering regulations.

According to Thomas M. Boyd, a former US assistant attorney general who served under President Ronald Reagan, Justice John Paul Stephens wrote an opinion in the case of Chevron U.S.A. v. National Resources Defense Council in 1984, midway through Reagan’s two terms, which started what legal scholar Gary Lawson would later describe as “nothing less than a bloodless constitutional revolution.”

The ruling fundamentally changed the way federal agencies could interpret laws they considered to be “ambiguous.” Following this decision, subsequent presidential administrations utilized it to enforce policies that effectively functioned as laws, often deviating from the exact wording of the legislation passed by Congress.

But now, Boyd noted in a column for the New York Post, “At long last, on Wednesday, the Supreme Court will hear two cases that may signal the beginning of the end to that revolution.”

Boyd noted that Article I of the Constitution says explicitly, “All legislative power herein granted shall be vested in a Congress of the United States”—not federal regulatory agencies.

In simpler terms, Stephens believed that the Executive Branch, including presidents and their appointees, had the power to determine the specific interpretations of certain aspects of laws enacted by the Legislative Branch.

That, Boyd noted, was at the center of the Chevron decision and became known as the “Chevron defense,” leading President Ronald Reagan’s White House counsel, Peter Wallison, to describe it as “the single most important reason the administrative state has continued to grow out of control.”

Boyd writes:

Forty years of regulatory and judicial tumult have ensued, finally crescending to a point that has compelled the Supreme Court to intervene. Loper Bright Enterprises v. Raimondo, from the District of Columbia Circuit, and Relentless v. Department of Commerce, from the First Circuit, are now before the court. Both are companies that fish for herring in New England and are family-owned and operated, and both are subject to the Magnuson-Stevens Act, which governs fishery management in federal waters. The act allowed the National Marine Fisheries Service to require herring boats, relatively small vessels that normally carry only five to six people, to also carry federal monitors to enforce its regulations.”

It gets worse.

The former Reagan assistant attorney general mentioned that the agency, without explicit statutory authorization, proceeded to require Loper Bright and Relentless to bear the expenses for the salaries of these monitors. The NMFS estimated these costs at $710 per day, at times exceeding the income generated from a day’s fishing.

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Both federal circuit courts ruled that statutory silence on the matter was an “ambiguity” that required the application of the Chevron deference.

But when the Supreme Court accepted certiorari in both cases, justices proposed a two-part question that litigants would be required to address:

“Whether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.”

Boyd noted that some of the court’s current justices—constitutional originalists, in fact—have indicated in previous opinions how they view the matter.

Several have indicated suspicion in allowing federal agencies — and, by definition, the Executive Branch in general — too much leeway in the interpretation of laws, giving them nearly limitless power in governing, Boyd noted.

Yet there’s more than just this NOAA decision at stake. In point of fact, the current two SCOTUS cases’ plaintiffs “are urging the justices to overrule a landmark holding involving the energy giant Chevron,” informs The Harvard Gazette. “In that decision, from 1984, the court said government agencies are best positioned to interpret federal statutes if a question is not specifically addressed, provided the interpretation is reasonable.”

“Since then, ‘Chevron deference’ has been a foundational framework in administrative law,” the Gazette continues — even though federal bureaucracies (whose mere existence is usually unconstitutional) have no power under the Constitution to make the decisions in question.

The irony here is that while Chevron was designed to limit judicial activism — i.e., insofar as Congress and the bureaucracy don’t make the necessary decisions, the courts will — it has led to bureaucratic activism.

Many SCOTUS justices are skeptical about Chevron, too. At a Wednesday hearing, Justice Neil Gorsuch expressed this point of view, saying:

“The cases I saw routinely on the courts of appeals — and I think this is what niggles at so many of the lower court judges — are the immigrant, the veteran seeking his benefits, the Social Security disability applicant, who have no power to influence agencies, who will never capture them, and whose interests are not the sorts of things on which people vote.”

As for the opposing position, “Overruling Chevron would cause an ‘unwarranted shock to the legal system,’ U.S. Solicitor General Elizabeth Prelogar said,” USA Today’s Dace Potas reports. Prelogar’s rationale is that the current standard provides “stability,” Potas also writes, and that without it the courts would be overwhelmed with “litigants from past cases that were decided using Chevron deference, that now would have the opportunity to relitigate their case.”

Yet is this a good argument? As Potas points out:

“Just because resolving incorrect law is inconvenient does not mean we should allow bad precedent to stand. This is the very logic the court has followed in overturning other precedents, such as Plessy v. Ferguson or Roe v. Wade.”

In fact, Chevron has enabled congressional complacency. “The punishment for legislation remaining ambiguous when it becomes law ought to be that those responsible be tasked with fixing it,” Potas states. This would be Congress.

“But Congress is both lazy and divided,” Potas adds, “making the passage of any legislation difficult, much less renegotiating bills that have already passed.”

But what is really being said here? Translated, is it not this: Chevron makes growing and maintaining big government impractical? Bureaucracies can quickly and easily hand down thousands of regulations that could never be passed so rapidly by Congress, if at all.

Conclusion: Overturning Chevron would help hamstring the D.C. leviathan. This is perhaps what really bothers its defenders. The Harvard Gazette, for example, says that a post-Chevron government “cannot work in practice.” But do we want things neat and quick? Then appoint a dictator who’ll make decisions with a pen stroke.

Representative government is supposed to be messy, and congressional gridlock is generally a good phenomenon. After all, limiting congressional production is healthy since what Congress produces are laws, regulations, and mandates — which reduce freedom — and big programs that consume wealth.

Yet there’s another factor. Many legislators may love outsourcing their job to agencies, and courts, because then on controversial issues they don’t have to take tough stands that could cost them the next election. The bureaucrats and judges can make those tough decisions — without fear of job loss.

All this said, whether Chevron will be overturned is questionable, as word is that justices John Roberts and Amy Coney Barrett are, not surprisingly, mushy on the matter. Maybe the most likely outcome is that it will be limited but not nixed. Given this, in closing perhaps two points should be made:

Convenience must never trump constitutionalism, and a “precedent” must always yield to what precedes it: the ultimate precedent — the Constitution. ✪

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