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Bureaucrats no longer judge, jury and executioner

July 5, 2024

SACRAMENTO – After reading progressives analyze the U.S. Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondo, I’m wondering if many of them read it or understand the underlying doctrine the court overturned. Common overwrought hot takes claim Loper Bright will obliterate federal regulations, give corporations power to self-regulate and even usher in fascism. Seriously.

In reality, the court simply put federal bureaucracies in their rightful constitutional place, rather than allowing them to make stuff up as they implement ambiguous statutes. For a quick grade-school refresher: The legislative branch (Congress) writes laws. The executive (president and federal agencies) executes laws. The judiciary (federal courts) interprets law. Each branch is independent and serves as a check on the others as a means to limit power.

In 1984, the U.S. Supreme Court concocted a doctrine in an obscure case (Chevron v. Natural Resources Defense Council) called “Chevron deference.” The court determined that when a federal law is ambiguous – and Congress often writes imprecise laws – the courts must defer to whatever the agency decides with some caveats. Although the decision wasn’t viewed as particularly significant at the time, it gave agencies the power to fill in the blanks. It influenced thousands of cases.

This gave the executive vast powers over the judiciary, which is the proper place to mediate disputes. For average citizens, it obliterated their ability to stand up to governmental abuse. Chevron deference only applied at the federal level, but let’s say you have a dispute with the authorities. Would you want a) the agency’s opinion to be the final word or b) just one part of a record adjudicated by a judge? In a free society, the answer (b) is easy.

To progressives, whose entire political project is built upon empowering the administrative state, this is an outrage. Vox’s Ian Millhiser complainsthat the decision “expands the court’s authority so that it is also the final word on thousands of questions that hardly anyone cares about at all – questions like what the cable television rates should be on one of Hawaii’s islands, or how much nitrogen can be discharged by a wastewater treatment plant in Massachusetts.”

Try to unpack the elitism in that statement. Many people care about those questions, as they directly infringe on the freedoms and finances of Americans who are on the receiving end of arbitrary rule-making. Loper Bright involves small New Jersey fishing fleets that were required, by edict from the National Marine Fisheries Service, to pay $700 a day for federal monitors to protect against overfishing.

Congress wrote a law requiring government overseers to tag along on these boats when they entered certain waters, but the fishermen objected to paying the observers. That was never in the law. Enforcement specifics were ambiguous. The self-serving payment scheme was the idea of the agency – and then Chevron deference basically forced courts to defer to its decision. But no one cares, right?

The decision will not obliterate regulations, even if many businesses use it to file lawsuits against similarly absurd agency creations. As Justice John Roberts wrote for the majority: “The very point of the traditional tools of statutory construction … is to resolve statutory ambiguities. That is no less true when the ambiguity is about the scope of an agency’s own power – perhaps the occasion on which abdication in favor of the agency is least appropriate.”

In other words, courts might not be experts in herring populations, but they are experts in dispute resolution. And it’s no surprise that government agencies, when given carte blanche to rule on their own powers, will almost certainly err in their own direction. As Public Choice Theory explains, government officials are not unbiased doers of the public good. They pursue their own institutional interests.

The court also noted that agency decisions change over time, so how are normal citizens supposed to comply with such arbitrariness? Contra progressive hysterics, this ruling does not stop judges from considering agency expertise. It’s just the agency no longer is judge, jury and executioner. Maybe Congress might even spend more time drafting laws in a precise manner. (And courts have long expected adjustments to Chevron, so it’s unlikely to cause earthquakes.)

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Ironically, progressives are now hyperventilating (and perhaps with good reason) about the prospect of another Trump administration. Some Trump allies have released a 900-plus page document (Project 2025) that advocates having the likely new administration exert “unitary” political control over federal agencies. If that happens, shouldn’t they celebrate Loper Bright, which lets judges rather than agency officials make the final call?

Some progressive critics have forgotten – or maybe never knew – that Chevron deference originally was viewed as a conservative victory as it forced the Environmental Protection Agency to defer to President Reagan’s administration appointees. It’s a warning for conservatives, too. Be careful that your short-term victories (did someone say presidential immunity?) don’t cause you 40 years of sorrow.

Steven Greenhut is Western region director for the R Street Institute and a member of the Southern California News Group editorial board. Write to him at [email protected].

Orange County Register

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Bureaucrats no longer judge, jury and executioner

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