The Patriot Post® · The Bureaucracy Gets Hauled Before the High Court
Who knew that a herring boat could be the key to clawing back American Liberty from excessive regulation by unelected bureaucrats?
It’s true. Recently, the Supreme Court agreed to hear a case that calls into question its much-abused “Chevron precedent.” That precedent, which dates to 1984 and is named for the Court’s decision in Chevron U.S.A. v. Natural Resources Defense Council, allows unaccountable regulators within the federal bureaucracy to grant themselves expanded regulatory powers in murky areas of law beyond what the original governing statute had expressly outlined.
Essentially, the Chevron deference says we need to trust the regulatory bureaucrats to fill in the blanks of laws that don’t expressly allow them to do what they want to do.
In other words, Chevron gives extraordinary powers to pencil-pushers concerning how we live our lives.
In other other words, they’re from the government and they’re here to help.
Technically, the Supreme Court’s Chevron deference involves a two-step test: First, a judge must decide whether an existing law speaks directly and precisely to the regulatory matter at issue; second, if the law’s meaning is ambiguous, courts must defer to the regulatory agency as long as its actions are based on a “permissible construction.”
Sounds a lot like penumbras and emanations, if you ask us.
The case that will come before the Supremes, Loper Bright Enterprises v. Raimondo, gives us a great example of why the regulatory state of the executive branch needs to be brought to heel, and why the separation of powers among our three branches of government is long overdue for a rebalancing. As The Wall Street Journal notes, Raimondo dates back to an obscure regulation within a 1976 fishing law:
The Magnuson-Stevens Act lets the National Marine Fisheries Service (NMFS) require fishing vessels to carry federal observers on board to enforce the agency’s fishing regulations.
In three narrow circumstances, the law also permits the agency to require vessels to pay the salaries of government monitors. In February 2020 the agency went further and required some vessels to foot the bill for government monitors when those narrow circumstances don’t apply. This would cost fishermen about 20% of their annual revenue.
Imagine that: Fishermen not only have to allow the regulators to come aboard, but they have to cough up 20% of their earnings for the privilege of having them do so. Now you know why that jar of pickled herring is a lot more expensive than it needs to be.
Here’s how the legal experts at Stanford Law — not the unruly children, but the actual law professors — explain the onerous Chevron deference:
It is the idea that in litigation over federal agency action, the courts will defer to the agency’s own construction of its operating statute, unless that construction is outside the range of reasonableness, usually because the meaning of the statute is clear. The effect is to give the executive branch considerable leeway in determining the scope of its own power. Although first announced in 1984, Chevron deference has become a central pillar of the modern administrative state. It is a systemic thumb-on-the-scales in favor of the government’s view of the meaning of the statute, even if that view changes with political winds and even if it contradicts earlier judicial interpretation.
But these are fishing boats, we hear you saying. What does this have to do with me?
Answer: Plenty. Because whether you know it or not, you’re being regulated six ways till Sunday. One of the scribes at RedState goes beyond herring boats: “That’s how you get the ATF banning bump stocks despite there being no actual statutory allowance for such a violation of personal freedom. It’s also how you get the lion’s share of environmental regulations, including literal puddles in backyards being hit with ridiculous, costly EPA enforcement. The federal government has been completely out of control for decades, and the Chevron Doctrine has been at the heart of many of the abuses.”
Buried within the federal fishing agency’s defense in Raimondo is a string of words that we think best epitomizes the regulatory state and why it desperately needs to be reined in. As the Journal noted, “In its defense, the agency cited a catchall provision in the law allowing it to ‘prescribe such other measures, requirements, or conditions and restrictions as are determined to be necessary and appropriate for the conservation and management of the fishery.’”
If that bureaucratese doesn’t make your skin crawl, then you might be getting the government you deserve.
Otherwise, you should be rooting like hell for our 5-3-1 conservative Supreme Court to undo the Chevron precedent.
UPDATE: We should also note that Justice Ketanji Brown Jackson recused herself from this case, because she’d already heard arguments about it when she sat on the D.C. Circuit. Thus, the Supreme Court’s leftist minority will be even smaller when it comes time to render a decision.