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A Chance to Rein in the Administrative State’s Tyranny?

July 28, 2023

This op-ed was originally published at the Orange County Register.

The classic 1970s cartoon “Schoolhouse Rock” taught a generation of American kids how a bill becomes a law: Congress debates proposed legislation and votes on it—and if the House and Senate approve, it’s sent to the White House. Then, if the president signs the bill, it goes into the statute books.

But the sad truth is that this simple process barely resembles how lawmaking actually works. In today’s world, most of the rules we must obey are created by unelected employees of the regulatory agencies often called the “Administrative State.” These unelected bureaucrats’ powers far exceed anything contemplated by the Constitution, and they’re subject to few of the checks and balances that the Founders thought essential to a healthy democracy.

The result is a system in which lawmaking occurs almost automatically, without meaningful input by voters or their representatives. No Californian, for example, thinks bees are a type of fish. Yet in 2019, regulators at the state’s Department of Fish and Game passed a rule classifying bees as fish. State law only lets those regulators pass rules for protecting fish, but the law also uses the word “invertebrates,” and since bees are invertebrates, department officials declared that they could therefore write rules about bees, too.

No voter ever thought the perfectly dry land that Mike and Chantelle Sackett bought in Idaho twenty years ago should be legally defined as “a water of the United States,” or that their effort to build a home should qualify as “water pollution.” But a single bureaucrat at the Environmental Protection Agency decided otherwise—leading to a decades-long legal battle that bankrupted the Sacketts even though they won.

No elected member of Congress ever decided to put a one-year limit on veterans applying for disability benefits. But in 2009, when National Guardsman Thomas Buffington applied for payments he was entitled to, he learned Veterans Administration officials had implemented a rule barring payments beyond “one year prior to the date” of an application.

In these and countless other cases, regulatory agencies have exploited vague or undefined words in laws, in order to give themselves power—power that derives not from “we, the people,” but from their own say-so. What’s worse, courts typically let them do it.

That’s due to a principle lawyers call “deference,” which says judges should go along with whatever agencies say, except in the most extreme circumstances. There are many types of deference, but the most infamous is “Chevron deference,” named for a 1984 case in which the Supreme Court said bureaucrats can define legal terms however they want, as long as it’s “reasonable”—“reasonable” being a legal code-word that means anything not wildly outrageous.

Four decades later, the consequences are clear: bureaucrats—and the president, who oversees them at the federal level—can expand their powers far beyond what elected officials ever anticipated, and judges will allow it. That’s not just bad for democracy, it also expands the scope of government into almost every region of our lives. Administrative agencies, after all, oversee everything from environmental pollution to the kinds of doorknobs you can have in your house.

Fortunately, the Supreme Court recently signaled that things may be about to change. The justices will be hearing arguments in a case involving an obscure federal law governing fishing companies—and the Chevron deference rule that bureaucrats used to expand that law.

The case began in 2020, when the agency responsible for fishing in the Atlantic announced a new rule: from now on, fishing companies would have to pay the salaries of federal inspectors who ride along on ships to make sure they’re following environmental laws.

Of course, forcing these businesses to write inspectors’ paychecks is expensive, and it’s something Congress never authorized: nothing in the law imposes such a requirement. But the bureaucrats pointed to a part of that law that lets them “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.” That, they said, plus Chevron deference, means they can do as they please.

Lower courts agreed, but the justices decided to review the case—and announced that they would specifically consider whether to overrule the Chevron precedent.

They should. In countless ways, Chevron’s “deference” theory has expanded government power and diminished its responsibility—to the point that, in the fishing case, bureaucrats were empowered to impose a form of taxation without representation, contradicting one of this nation’s most sacred constitutional principles.

It’s time to get back to basics. The Constitution’s authors carefully designed a system of checks and balances where laws only go on the books when approved by the people’s representatives. But “deference” eliminates those protections, and lets officials intrude into our lives in ways that are not only bad for freedom, but for democracy as well.

Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute, which has filed a brief urging the Supreme Court to end Chevron deference.



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