Supreme Court may finally end rule of bureaucrats with ‘tragic’ Chevron case
John Fund
The Supreme Court made a tragic mistake almost 40 years ago.
In the 1984 case of Chevron v. Natural Resources Defense Council, it ruled federal judges must defer to a regulatory agency’s interpretations of federal laws, so long as Congress has not addressed the issue in question and the agency’s view can be construed as “reasonable.”
Since then, the power of the unelected administrative state has ballooned so that it now dictates much of our economy and daily lives.
The court announced Monday it will revisit that precedent, raising hopes that this enormous federal power might be reined in.
The Constitution set up a system of separated powers in which Congress would pass the laws, the president would administer them and the courts would interpret them.
Since the New Deal, Congress has shirked its accountability by increasingly giving unelected agencies the power to make decisions of vast economic and political significance.
The Chevron decision turbocharged that process.
Politico says liberal activists love Chevron because in hundreds of court decisions it has been invoked to hand agency experts the power “to respond to problems that Congress might not anticipate or fully understand.”
That may be expedient, but it is a dangerous trampling of our constitutional framework.
The job of Congress is to pass laws that are detailed and limiting to the executive. The executive’s job is to execute laws, not write them.
And there was a time when some liberals worried the Chevron doctrine encouraged unchecked executive authority.
In 1986, Stephen Breyer, a future Supreme Court justice then serving on a federal appeals court, called Chevron an “abdication of judicial responsibility” because the Constitution gives judges, not agency bureaucrats, the power to interpret federal law.
The Supreme Court last year took a first step in backing away from its Chevron decision.
In West Virginia v. Environmental Protection Agency, a 6 to 3 court majority ruled that from now on Congress must explicitly grant regulatory agencies the power they wield.
That infuriated the activist left.
Since the spectacular collapse of President Barack Obama’s cap-and-trade scheme to rein in carbon emissions, which failed to even get a Senate floor vote in 2010, environmentalists have become experts at twisting and distorting old laws to accomplish by the back door what they could never do using legitimate constitutional approaches.
From regulations aimed at climate change to the overriding of local zoning laws in New York, activists have used that approach to lobby federal agencies to implement an agenda Congress would never approve on its own.
One former federal regulator, appalled at left-wing efforts to ban gas stoves, told me: “They go through federal agencies like burglars who try every door in a neighborhood in the belief one of them will be unlocked.”
The court may not overturn the case in full, but the fact that at least four justices have agreed to reexamine the decision indicates Chevron deference is likely to be curbed.
Justice Neil Gorsuch, whose mother ironically was involved in the original 1984 Chevron decision as President Ronald Reagan’s head of the Environmental Protection Agency, wrote in November that the court “should acknowledge forthrightly that Chevron did not undo, and could not have undone, the judicial duty to provide an independent judgment of the law’s meaning.”
Gorsuch has written elsewhere: “Maybe the time has come to face the behemoth” of the administrative state.
Let’s hope the court does slow down the bureaucracy’s power to pass its own form of laws disguised as regulations.
The American people should decide key issues through their elected representatives in Congress, as the Constitution envisions.
To have an unelected elite in Washington substitute for that is to replace the rule of law with the rule of bureaucrats.
John Fund is a columnist for National Review.
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