Will the Supreme Court curb the power of federal regulatory agencies?
They’ve taken the first step, anyway, by agreeing to hear the case of Loper Bright Enterprises v. Raimondo, which is a process that could end up overruling Chevron:
Nearly 40 years ago, in Chevron v. Natural Resources Defense Council, the Supreme Court ruled that courts should defer to a federal agency’s interpretation of an ambiguous statute as long as that interpretation is reasonable. On Monday, the Supreme Court agreed to reconsider its ruling in Chevron.
The question comes to the court in a case brought by a group of commercial fishing companies. They challenged a rule issued by the National Marine Fisheries Service that requires the fishing industry to pay for the costs of observers who monitor compliance with fishery management plans.
Chevron has allowed federal agencies to effectively act as unacknowledged, unelected legislators whose decisions have had sweeping conequences. Curbing their power would be a watershed event.
Here’s the Chevron doctrine in a nutshell:
The scope of the Chevron deference doctrine is that when a legislative delegation to an administrative agency on a particular issue or question is not explicit but rather implicit, a court may not substitute its own interpretation of the statute for a reasonable interpretation made by the administrative agency. Rather, as Justice Stevens wrote in Chevron, when the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s action was based on a permissible construction of the statute.
Here’s an objection to Chevron, voiced by political scientist Charles Murray:
Chevron deference augments that characteristic of prerogative power by giving regulatory bureaucrats a pass available to no private citizen and to no other government officials — including the president and cabinet officers — who function outside the regulatory state. For everyone except officials of the regulatory state, judges do not defer to anything except the text of the law in question and the body of case law accompanying it.
This case promises to be interesting as well as potentially important.
There’s a whole book written on the question, Is the Administrative State Unlawful?
https://scholarship.law.columbia.edu/books/29/
The correct answer is yes, because it means the bureaucracy is a law unto itself that does not answer to Congress. They become an independent body that makes its own laws and has its own courts that promulgate and enforce laws that a citizen effectively cannot defend himself against.
Actually monitoring the administrative state is hard work.
I met a lawyer in Lincoln last week who won 2 religious liberty cases in SCOTUS and argued another one this year. Three!
One point he made was that when a totalitarian state wants to crack down on freedom, that religion is the first place. The states shut down the places of worship first.
Also, recall no religious exemptions to the jab.
LOL…. I just now read about this, to me, seemingly obscure case that could have major consequences. CTRL-C’d the link and cruised over her to find Neo very much on top of everything. Neo, you may be tired and bit stretched, but you still have your A-game.
They’ll just ignore the ruling.
My experience in corporate America was that a regulatory agency simply had to indicate a wish and your compliance department would make you do it, and if they didn’t, your lawyers would.
Without Chevron it’s possible we’d see government outsourcing less totalitarianism to the private sector.
Gut Chevron like a fish, please, SCOTUS.
This issue (what a regulatory agency can force people to do) is endemic now. The Bureau of Land management (BLM) has been forcing ranchers off of government lands that they previously used for grazing. It’s created several dust ups – see the Bundy standoff near Las Vegas and the takeover of the Malheur Wildlife Refuge in Oregon.
I’ve had my own issues with the green cult. They forced the irrigation district that I was a member of to put our irrigation ditches underground, which cost us a bundle of money. They weren’t satisfied. They then claimed the water used for irrigation was harming the salmon runs. The only way forward was to hire a lawyer and some scientists to refute their claims. More money. I was too old and too poor to keep fighting them. So, I sold out to people who had money and were up for the fight.
There is no issue – agriculture, ranching, fishing logging, mining, oil/gas drilling, home building, roads, trails, etc., etc. – that they aren’t working to shut down. The government agencies are crawling with these green cultists. A good start for Congress would be to get rid of, or severely rein in, the EPA. Their “rules” are what are used to attack productive and essential activities that they don’t like.
Good luck to SCOTUS in trying to inject some balance into this. The survival of our prosperity depends on it.
Years ago I remember listening to Justice Sandra Day O’Connor discuss why the courts were “legislating from the bench”, (my words) more and more. She said, Legislatures were writing laws ambiguously and it was causing the courts to have to step in and try to interpret what the law makers meant when they wrote the law in order to settle disputes.
I suppose one could argue, the courts saved both legislative parties with Chevron. Legislatures no longer have to govern and they could blame the courts, the regulators, and the Presidents for their failure to do their job and to do it well. Reason 6,989 as to why we are where we are today.
This case looks promising, and I am hopefully awaiting the college racial discrimination decision.
Left unchecked, they shall regulate Americans into serfdom.
If the separation of powers, and the “no delegation allowed” doctrine, mean anything, then it would seem that a court that cannot figure out what the legislature meant by its vague, capricious, or arbitrary language should be able to declare that law null and void (in whole or in part) and then let the legislature decide how to fix their mess (and dereliction of duty).
A corollary thought, that might be somewhat anarchic (or nonsensical in spades):
If the executive branch is responsible for enforcing the laws, and the president is also a constitutional officer, then he/she is also responsible for “interpretating” the Constitution (even if only so they know how, when, and where to enforce a given piece of legislation). So first the SCOTUS’s private deliberations have to convince a majority of its members on how to rule/ decide an issue. Then the president gets to decide if that ruling comports with his/her understanding of the Constitution.
The Presidential Oath says the president “will faithfully execute the Office of President … and protect and defend the Constitution…” I can read that as said office holder being obligated to bring his own interpretation of what is being protected and defended, even when the legislature and/or the SCOTUS provides an alternative interpretation. So, yeah, that could become anarchic or tyrannical, as “someone has to decide” … “what the law is”. And we have traditionally let SCOTUS be that final decider. But maybe we should not be held to years (or decades) of flawed SCOTUS rulings. SCOTUS or the president should both be able to declare laws null and void under their coequal branch authority and force Congress to revisit a flawed piece of legislation; especially if it is two branches against the other. [Perhaps when a law was passed over a presidential veto, then the president does not get to put it back on Congress (after a SCOTUS decision)??]
Or does this come pretty close to Roper’s wind?
R2L:
Actually, it’s not necessarily about flawed laws. No statute can be drafted perfectly and ambiguities and unforeseen situations will ALWAYS exist. That’s why courts are called in to interpret the law in the light of those ambiguities and unforeseen situations. So your suggestion wouldn’t work. Plus, if every time an ambiguity or new circumstance existed the legislature had to draft a new statute (or modify one that it may not have been involved with in the first place), the legislature would be overwhelmed with the tasks.
And if each branch could overrule the other, pandemonium would ensue, probably constantly.
…a reasonable interpretation made by the administrative agency…or any such agencies under Biden does not exist. Reasonableness is not something they are capable of. Euthanasia of said agencies is therefore indicated. Let’s hope the justices do their duty.
One of my complaints is when agencies determine a change in allowed statutory interpretation and regulation based on highly political Executive (Presidential) directives. BATFE has reinterpreted the National Firearms Act (NFA) after Trump, then Biden, issued executive orders requiring such, and issued new regulations reversing course in several areas. Chevron Deference is at least somewhat based on agency expertise, but more and more, it seems to be driven by politics.
Bruce,
Agree. Came to comment on the executive order problem. But it’s everywhere.
Congress has stopped even pretending to work. The executive branch is out of control with both executive orders and regulatory overreach.
Courts have been a hubristic nightmare for many years. Federal courts have been running prisons and school systems for half a century. Remember the federal judge who designed his own Taj Mahal high school in KC and ordered local taxes be raised to pay for it. Not sure Madison would have recognized such a federal judicial power. Naturally, the appellate courts saw no problem with judges wielding that kind of power. The exercise turned out to be a massive disaster. Voters, however, had no way to hold him accountable for his stupidity and abuse of power.
The rarest thing in modern society is someone who understands the importance of staying in their lane.
https://www.cato.org/commentary/americas-most-costly-educational-failure
A short summary of the case of the federal judge who ordered $2 billion in state and local tax increases. The way the money was spent was ridiculous. But dictators need never concern themselves about such trifles as productivity, efficiency, lost opportunity cost or common sense.
America as a constitutional republic has been dying for a long, long time.
Here is a quote from the Declaration of Independence that doesn’t get the play of the life, liberty and the pursuit of happiness but is a more relevant grievance today.
“He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance.”
Frederick said:
“My experience in corporate America was that a regulatory agency simply had to indicate a wish and your compliance department would make you do it, and if they didn’t, your lawyers would.”
That’s been my experience as well. A few years ago my employer preemptively reclassified several hundred salaried workers as non-exempt because of a rule change the US Department of Labor was *considering* – then made it retroactive for those employees back to their start dates. That was an exciting phone call with HR, since of course, these people worked on contracts that didn’t allow overtime – and under the old rules, these employees weren’t due overtime, so the company had to eat the difference and it couldn’t be passed on to the customer.
The employees in question were systems administrators, who often worked on weekends or off hours to not interfere with day-to-day-operations when they performed upgrades, etc. What this meant was that as salaried employees, they could shift hours around within the half-monthly pay period to accommodate that. Once they became hourly, they were locked into 40 hours per Monday-to-Sunday period, so they were due overtime for some weeks, and *lost* pay for other weeks, in the retroactive reclassification. So in the end, the employees lost flexibility and routine maintenance that was done over the weekend was now done during business hours. Oh well…
Met the author. Disgusting person.
https://www.taylorfrancis.com/books/edit/10.4324/9781315197296/theory-practice-command-control-environmental-policy-peter-berck-gloria-helfand