Populist conservatives have made their peace with big government and seem to spend their time these days fighting symbolic culture-war battles over such silliness as drag shows. Many of their “solutions” involve owning the libs by harnessing state power on behalf of “conservative” objectives — although none of this will result in any improvement in our liberties. Quite the reverse, actually.
Instead of out-competing the Left in the aggressive misuse of government, conservatives need to return to their now-jettisoned project of reining in the size and scope of government. It’s a lot harder than preening for Fox News or defending President Donald Trump’s latest indefensible shenanigans — and it takes more time too. But the results are worth it, as revealed by a new case to be heard before the U.S. Supreme Court.
If you want to give the average citizen better standing, then Chevron has to go.
The case, Loper Bright Enterprises v. Raimondo, at first sounds banal. “A group of commercial fishermen is asking the U.S. Supreme Court to stop the federal government from making them pay for workers who gather data aboard fishing boats,” reports the Associated Press. The National Oceanic and Atmospheric Administration is forcing the industry to pay for these costly regulatory compliance monitors — something that’s eating into profits and wages.
The case, however, threatens to unravel the power of the administrative state because it centers on something known as “Chevron deference.” In 1984, the U.S. Supreme ruled in a case pitting the oil company Chevron against the Natural Resources Defense Council over regulatory mandates related to the implementation of the 1977 Clean Air Act Amendments. The decision’s test gave administrative agencies largely unchecked powers.
As law professor Ilya Somin explains in Reason, the ruling “requires federal judges to defer to administrative agencies’ interpretations of federal laws that the latter administer, so long as Congress has not clearly addressed the issue in question, and the agency’s view is ‘reasonable.’” In other words, whatever a regulatory agency says mostly goes — and Chevron largely required the courts to defer to agency decisions even when they were illogical and contradictory.
The progressive project is largely about creating a massive administrative state by which government experts can advance the public good as they see fit. Traditionally, the pre-populist conservative project has been about protecting the rights of individuals — and ensuring that the government stays within its bounds. If you want to stop progressivism, you need to limit the power of government agencies and uphold the rights of individuals.
“The idea of separating politics and administration—of grounding a significant portion of government not on the basis of popular consent but on expertise—was a fundamental aim of American Progressivism and explains the Progressives’ fierce assault on the Founders’ separation-of-powers constitutionalism,” wrote politics professor Ronald Pestritto in a 2007 Heritage Foundation report on “the birth” of the nation’s “administrative state.” (RELATED: Crony Capitalism’s Comeback?)
Obviously, limiting court oversight of administrative decisions greatly advanced that objective — although some state governments have, as Somin notes, reined in those powers in the ensuing years. However, the U.S. Supreme Court’s willingness to accept this case is good news, with most observers seeing it as an indication (given the court’s political tilt) of a court that’s ready to roll back regulatory powers for every type of agency.
This is a big deal. One attorney quoted in the Hill captures the case’s significance: “I would think it’s the most significant federal case of this era.… Some people will say Roe, I mean, so that’s how major this is.” Another said: “It’s preordained, or a foregone conclusion that by granting cert in this case, the conservative majority will limit the Chevron doctrine…. The question is, how far will they go?”
The further, the better for those who want to put limits on progressive efforts to shift power from courts to regulatory bodies. This statistic from attorney Jonathan Wood, writing for Pacific Legal Foundation, puts the matter in perspective: “When Chevron deference applies, agencies win nearly 80% of cases, compared to 38% when courts don’t put a thumb on the scale in the government’s favor.”
If you want to give the average citizen better standing, then Chevron has to go. No wonder many observers are freaking out. For example, Vox’s senior correspondent Ian Millhiser argues that overturning Chevron would “make the United States far less democratic.… This project necessarily shifts power away from the other two branches, whose leaders are elected, and to the unelected members of the federal judiciary.”
That’s a fanciful take on scaling back a court ruling that empowered unelected bureaucrats to issue broad edicts without much court oversight. Certainly, administrative agencies are arms of the executive branch, but how often does a president or any other elected official oversee some regulatory decision about fishing monitors? Transferring power to alphabet agencies lessens oversight and accountability.
As Millhiser’s Lexis Nexis search found, “federal courts have cited Chevron in over 19,000 different judicial opinions.” That proves its wide-ranging impact. It is preposterous to suggest, as the Vox headline does, that “[a] new Supreme Court case seeks to make the nine justices even more powerful.” This isn’t about expanding the high court’s power but rather about giving the citizenry a fighting chance.
Here’s Wood again:
Today, countless federal agencies have consolidated legislative, executive, and judicial powers and are not accountable to the people. Bureaucrats, and not our elected representatives in Congress, make most of the laws that govern us.… And they largely do this outside of the courts, relying instead on administrative law judges that agencies themselves select.
I guarantee that changes to Chevron will be a much bigger “own” than shutting down a library’s drag queen reading hour.
Steven Greenhut is Western region director for the R Street Institute. Write to him at firstname.lastname@example.org.
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