Tuesday, May 7, 2024

A Bureaucrat on Every Boat? By Nate Jackson

The Supreme Court considers a case that's relevant to almost literally everything Americans do.

Story by Nate Jackson
The Patriot Post

America is full of fishermen who know what time to go and where, how to bait a hook, how to reel in the catch, and how to clean a fish. Fathers pass on the tradition to sons and don't need someone else to tell them what to do.

The federal government, however, demands a bureaucrat on every boat to make sure fisheries don't exceed any herring quotas, and the fisheries have to pay a $700-per-day fee for that bureaucrat. The government thinks it has this power because the Supreme Court effectively certified it in its 1984 Chevron USA v. Natural Resources Defense Council ruling.

That's an oversimplified way of framing yesterday's Supreme Court hearing in two related cases (Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce) that threaten to upend the so-called "Chevron deference."

Now we'll oversimplify the history and the mechanics to show why this case matters so much for almost literally everything Americans do anymore.

President Woodrow Wilson is the father of the administrative state. During his presidency (1913-1921), Wilson pushed the idea that "experts" ought to govern us via regulation because they know so much better than we commoners do. Wilson, the quintessential academic, had an arrogant and unshakeable belief in the superiority of the executive, the Constitution be damned.

Presidents Franklin D. Roosevelt and Lyndon B. Johnson greatly expanded government authority by making use of Wilson's administrative state. We have now reached the point where there's little in our daily lives that's out of reach of a federal bureaucrat somewhere writing a rule addressing, regulating, or banning it.

Thus you could say that those three Democrats did more to kill "democracy" — as in republican rule by the people's elected representatives — than any other figures in U.S. history.

Indeed, Congress soon found it useful to abdicate and delegate power to the new fourth branch of government because then congressmen could campaign for or against whatever policy without actually being responsible for it.

That brings us to 1984, when the Supreme Court, led by the late and otherwise great Antonin Scalia, ruled that when a law is vague and ambiguous, the benefit of the doubt goes to a "reasonable" interpretation of the bureaucracy responsible for enforcing that law. The rationale was understandable, especially insofar as it countered activist judges, but it has been a disaster in practice because executive agencies end up effectively writing laws to their liking, regardless of the intent of Congress.

And that brings us to the cases at hand. While Donald Trump had a tremendous record of deregulation, his administration produced the pay-for-the-bureaucrat-on-the-boat rule. Congress did not spell it out in the relevant 1976 Magnuson-Stevens Fishery Conservation and Management Act.

Fortunately, the man Trump nominated to replace Scalia, Neil Gorsuch, led the charge yesterday attacking the precedent and signaling that, like other awful Court precedents, its days are numbered. As Gorsuch put it, allowing agencies wide latitude to interpret laws "when Congress didn't think about the problem [means] the government always wins."

We'd go so far as to say Chevron severely undercuts the checks and balances of the Constitution. Congress abdicates law-making authority for its members' political benefit, executives run roughshod over the people with rules written by unelected career bureaucrats, and judges are largely stripped of any power to check that exercise of power. The "experts" exercise legislative, executive, and judicial power, all at the same time.

Justice Brett M. Kavanaugh asserted yesterday, "It's the role of the judiciary, historically, under the Constitution to police the line between the legislature and the executive, to make sure the executive is not operating as a king."

Justice Elena Kagan was seemingly more humble, but she and her two Democrat-appointed colleagues defended the Wilsonian tyranny of the "experts." "It's best to defer to people who do know, who have had long experience on the ground, who have seen a thousand of these kinds of situations," Kagan said. "Judges should know what they don't know."

We should all be skeptical of judges imposing their will over that of the executive branch, which at least is led by the elected president. Chevron was thought to correct that imbalance. But Kavanaugh is right. As we noted, in practice, Chevron has led to a massive expansion of powerful bureaucracies, which are staffed by "experts" who think far more highly of themselves than of your rights.

The solution isn't to empower activist judges, as Kagan pretends to fear will happen. It's to make Congress do its job. And in that case, the people's elected representatives ought to be far slower to regulate our lives. Frankly, much of what passes Congress runs so far afoul of the Founding Fathers' intent in the Constitution as to necessitate revolution far beyond a mere court ruling. But if those elected representatives are going to pass a law about something, they should at least have the decency to spell out more clearly what they mean instead of handing it off to the "experts."

As Gorsuch put it, in most of these cases, "Chevron is exploited against the individual and in favor of the government." Goliath beats David almost every time.

Should a fisherman have to onboard a bureaucrat monitor and pay for him to be there? That's just one of a thousand questions about routine daily activities that come under the weighty thumb of the administrative deep state. It's high time the High Court threw Chevron overboard.


Nate Jackson's career in political analysis began in arguments about Reaganomics with his eighth-grade American History teacher. His study of history and politics continued through school and work, and he finally landed at The Patriot Post in 2004. He's been managing editor since 2007

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