Do you support respect for Chevron or respect for the Constitution?The establishment, including the mainstream media and the Democratic Party, has made up its mind. For them, the end of Chevronism, which takes the problem of resolving ambiguous legal meanings out of the hands of bureaucrats and puts them in the laps of judges, represents a crisis. Forget about the people who are having their day in court. Forget constitutional governance, or even “democracy” as the left usually touts it. They want technocracy.
A good example is the ProPublica article. ProPublica ironically describes itself as a “nonprofit news organization that investigates abuses of power.” A recent title reads, “Supreme Court Justices Warn Ruling (on Chevron Doctrine) Will Cause 'Massive Disruption.'” “The impact is already being felt.”
Well, some people may hope so.
roper bright fight
ProPublica's Eli Sanders complained that Chevron's decision was made “in a seemingly mundane area of administrative law” and could have far-reaching implications. It could “impact a wide range of American lives by reducing the power of federal regulatory agencies to police pollution, food safety, health care, and countless other aspects of modern society,” he wrote. There is. Sanders later elaborated:
Lower court justices have already cited the Supreme Court's 6-3 decision, known as the Roper-Bright case, that blocked enforcement of Biden administration rules on overtime pay and health insurance discrimination.
… Justice Neil Gorsuch, a member of Roper-Bright's conservative majority, said this puts a “gravestone” on a doctrine that has existed for 40 years. This principle, known as Chevron Respect, is named after the 1984 Supreme Court case in which it emerged, and addresses a recurring question: When Congress passes laws that give federal agencies powers, We have provided an answer to what happens if we cannot define it precisely. What are the limits of that power?
In these situations, Chevron's deference doctrine directed federal judges to rely on the federal agency's interpretation to the extent that it is reasonable. This is because federal agencies typically have greater expertise in their field than judges. The Roper-Bright decision reversed that, ordering federal judges to “exercise independent judgment in determining whether a government agency acted within its statutory authority.”
In other words, this decision restored the status quo that had existed for 200 years of American history. This is a real precedent, preceding 40 years of “precedent”, which Roper's critics seem to think is very important.
Opposition to Roper Bright Not so bright
Sanders also cited dissident Justice Elena Kagan, noting that “federal courts have cited Chevron's deference 18,000 times.” This, she argued, makes it “part of the warp and woof of modern government.” question:
Has Kagan ever investigated how many times antebellum slavery proponents cited slavery as part of the “warp and woof” of the Southern economy?
Her argument is essentially a variation on the fallacy, argumentum ad Populum (loosely speaking, “appeal to popularity”). Did a judge quote Chevron 18,000 times because it was correct or because it was convenient? And if something is wrong, how many repetitions does it take to change it from wrong to right? Is it?
Sanders said Kagan also warned of “massive disruption.” Is this bad? Her traveling companion, Rep. Nancy Pelosi (D-Calif.), may not think so. After all, she told Berkeley graduates in 2014 to “be disruptors” “when necessary.”
it's necessary
Two notable arguments against Loper are raised. A common assumption is that “the courts will be overwhelmed'' trying cases that the bureaucracy (deep state) has previously solved. But this is not a discussion of principles.
That is an opportunistic argument.
And convenience never justifies violating the Constitution, the supreme law of the land and the guarantor of our rights.
Furthermore, the excessive number of cases that courts have is not an irreversible problem. After all, Congress has the constitutional authority to create as many district and circuit courts as it wants. It is also important to note that the judicial system has not undergone significant expansion since 1990, when the population was around 248 million. Currently it is about 333 million.
Sanders' second argument is that, unlike judges, bureaucrats generally have “expertise” in relevant fields. This seems like a good thing in principle. However, the reality is a little different.
How much of an expert is an “expert”?
Question: How many 5-4 SCOTUS decisions are there? Many. In other words, even though all judges are supposed to be legal “experts,” the split is often as close to 50-50 as possible. In fact, on every or almost every controversial issue, there are experts on “both sides.” (That is, unless there is more than one position.) Can the real experts please stand up?
Additionally, when referring to Dr. Anthony Fauci's COVID-19 prescription for schizophrenia, noted epidemiologist Knut Witkowski said, “Well, I'm not paid by the government, so I don't actually do science.'' There is a reason why he said, “I have the right to do this.” There's a reason former CDC Director Robert Redfield said the federal agency is “too cozy with special interests.”
Government “expertise” is generally contaminated by politics.
This is why, as Redfield also basically stated, the federal government's response to the coronavirus went horribly wrong (courtesy of experts).
As for ProPublica's Sanders, he's right about one thing. Congress could enact more precise laws so that extensive interpretation is not necessary, but that is unlikely. But again, this argument of convenience cannot justify a violation of the Constitution. Congress delegated that responsibility to judges. Judges then delegated that responsibility to bureaucrats. Mr. Roper Bright properly resolved this matter so that Americans could have their time in court again.
Or should there really be a fourth branch of government: the executive, the legislature, the judiciary, and the technocrats?
If bureaucrats whose names and faces cannot be seen can act as puppeteers in the shadows, this is not a government of the people, by the people, and for the people.
