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Brian Mark Weber / December 14, 2018

Challenging the Bureaucratic State

The Supreme Court has an opportunity to rein in the power of executive agencies.

One of President Donald Trump’s core pledges during the 2016 campaign was to drain the Swamp, but taking on the Washington bureaucracy will require far more than cutting back on spending or making government more efficient.

For well over 100 years, our nation operated without a monarchical executive. Then along came Woodrow Wilson, an academic and a “progressive” who believed that an enlightened administrative state was superior to government “by the people.” Franklin D. Roosevelt then “perfected” this bureaucratic governance with his “New Deal” programs, which resulted in soaring deficits, a tripling of the federal budget between 1933 and 1941, and a needlessly prolonged Great Depression.

Thus, modern presidents, including Trump, and their executive agencies have enjoyed carte blanche without having to worry too much about that pesky separation of powers. Ironically, Trump’s conservative appointments to the Supreme Court may be just what’s needed to finally curb the power of the executive branch and its myriad agencies that have run roughshod over the Constitution.

Here’s the good news: Just this week, The Wall Street Journal opined, “The Supreme Court announced that it will hear a legal challenge to two of its precedents that defer to agency interpretations of ambiguous regulations.”

Defer to agencies may not sound as threatening as the border caravan, ISIS, or a turbulent stock market, but for those of us who still believe in the quaint constitutional principles of separation of powers and limited government, it’s right up there with the most pressing issues of our time. And these agencies have had a detrimental impact on Liberty for far too long.

For the monster of bureaucratic overreach, we can partially thank the Supreme Court, which in 1984 reached a decision in Chevron U.S.A vs. Natural Resources Defense Council that the judiciary will defer to an agency as long as Congress has not “directly spoken” to the issue and the agency has engaged in a “permissible construction” of the statute.

The result of this seemingly innocuous ruling is that the president and his executive branch agencies now have tremendous power to operate as an autonomous government. In other words, they can make, interpret, and execute their own policies without deferring to Congress or the Supreme Court. In fact, it’s Congress and the Supreme Court that now defer to the agencies, thanks to the Chevron ruling. The Constitution is pretty clear about the separation of powers, and how those powers should function. But when one branch of government tells another that it’s basically free to act without oversight from the other branches, it’s no wonder we have the Swamp.

The late Justice Antonin Scalia did not participate in Chevron, but he did seem to throw up his hands and give in to the growing power of the federal government when he stated not long after the ruling that “broad delegation to the executive is the hallmark of the modern administrative state.”

Compare this to Justice Neil Gorsuch, who, in 2016 as a member of the Tenth Circuit Court of Appeals, stated in reference to Chevron, “There’s an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the fact is Chevron … permit[s] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth.”

National Review’s David French writes, “This Supreme Court … has the opportunity to begin the arduous process of paring back the powers of the president. The Court can’t, however, work miracles. It can push the president back a bit and reassert its own authority, but it can’t make Congress step forward and reassert its rightful lawmaking primacy. If the presidency recedes, the legislative branch must step forward.”

Despite many attempts to erode its relevancy and authority, the Constitution of the United States is the single most important document we have to protect and defend Liberty. We can only hope that President Trump’s Supreme Court appointments of Gorsuch and Brett Kavanaugh will begin to push back against the Court’s previous ruling in Chevron and restore the important constitutional balance among the legislative, judicial, and executive branches.

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