Panic! at the Fishery

Panic! at the Fishery

“Activist, far-right justices have once again abandoned the Supreme Court’s bedrock commitment to precedent,” Sen. Ed Markey, D-Mass., announced after the Supreme Court’s June 28 decision in Loper Bright v. Raimondo. “With this ill-advised decision, judges must no longer defer to the decisions about Americans’ health, safety, and welfare made by agencies with technical and scientific expertise in their fields. MAGA extremist Republicans and their big business cronies are rejoicing as they look forward to creating a regulatory black hole that destroys fundamental protections for every American in this country.”

Many of his colleagues shared Markey’s nightmare vision. The ruling was “a power grab by the far right to benefit the wealthy and well-connected,” warned Sen. Elizabeth Warren, D-Mass. “Corporate interests want extremist judges to write the rules at the expense of consumers, workers, safety, and the environment.”

“By overturning the Chevron doctrine, the far-right Supreme Court is sabotaging the public interest, gutting reasonable agency checks on corporate power,” added Rep. Ro Khanna, D- California.

Sounds pretty dark. Should we join the panic?

Don’t worry. Hysterics and hyperbole have become the default response of progressive greens to any restrictions on executive branch power.

Whenever courts rein in an administrative agency’s natural tendency to appropriate power to itself, a stream of moirologists—special interests, rent-seekers, elected officials, and environmental groups—fill the media with conspicuous lamentations.

The high court’s decision in Loper Bright v. Raimondo reviewed powers lawmakers have effectively ceded to unelected bureaucrats in government bodies like the Environmental Protection Agency. Thanks to inaction by elected officials, whose job is or was to write clear laws for our nation, these bureaucrats have amassed wide-ranging and unchecked authority to fill in legislative defects that Congress refuses to address. This congressional dereliction of duty has fostered a regulatory goliath that stifles American enterprise and innovation.

For four decades, this governing behemoth has grown, supported by the legal doctrine known as Chevron deference. The 1984 Supreme Court case Chevron v. NRDC established a standard of judicial deference to regulatory agencies on issues where ambiguity exists in legislation. This allowed executive branch bureaucrats to make decisions that rightfully belong to Congress. The result has been a series of extreme interpretations that trump common sense and legislative intent. Even when confronted with superior interpretations of the law, agencies could prevail simply by meeting a low bar of “reasonableness.”

“The scope of the Chevron deference doctrine,” explained the Cornell School of Law, “is that when a legislative delegation to an administrative agency on a particular issue or question is not explicit but rather implicit, a court may not substitute its interpretation of the statute for a reasonable interpretation made by the administrative agency.”

The doctrine required courts to defer to agency expertise in matters over which an agency has jurisdiction. “The result has been a massive expansion of the regulatory state,” tweeted Sen. Ted Cruz, R-Texas. The Chevron doctrine tied a bureaucratic millstone around the neck of the American economy and subjected individuals and businesses to the growing weight of government red tape.

By adopting the Chevron doctrine, the Supreme Court hamstrung itself with a “blanket presumption of deference to statutory interpretations put forth by regulatory agencies in any case where the statute was ambiguous,” wrote the Reason Foundation. The doctrine incentivizes agencies to seek out ambiguities to expand their power.

The court overturned Chevron deference in its 6-3 Loper Bright v. Raimondo ruling last week.

“Today, the Court places a tombstone on Chevron no one can miss,” explained Justice Gorsuch. “In doing so, the Court returns judges to interpretive rules that have guided federal courts since the Nation’s founding.”

Many activists and mainstream media reporters joined the Democratic lawmakers in issuing dire and apocalyptic responses to the court ruling. That a court decision re-establishing the constitutional separation of powers should cause such a panic is telling, but it is not new. We described equally overwrought reactions to the Supreme Court’s ruling in Sackett v. EPA last year. At that time, green special interests decried constraints on arbitrary EPA rules aimed at gaining jurisdiction over private property. They claimed the ruling “ripped the heart out of the law we depend on to protect American waters and wetlands.”

Mackinac Center legal experts have pointed out that a 2008 Michigan Supreme Court ruling “adopted the Mackinac Center’s argument that legislators, not unelected bureaucrats, are responsible for resolving policy disputes.” After 16 years, the state “has not suffered any cataclysmic harm.” After all, “The republic existed for centuries without a Chevron test.” In contrast, numerous examples of regulatory overreach exist to justify reasonable concerns over the growing power of regulatory agencies.

Markey alone appeared to grasp any portion of the ruling’s impact. “I plan to introduce legislation to protect the government’s policymaking ability that existed under Chevron that has worked for the last 40 years,” he promised.

Why didn’t he do that before? Markey has represented the state of Massachusetts in both the House and Senate since 1976—48 years! If he, or any other legislator, had seriously valued the alleged policymaking abilities provided by the Chevron doctrine, he could have proposed legislation to codify them into federal law at any point over the last several decades. Instead, the good senator’s actions indicate he was content to cede his constitutional authority to unelected bureaucrats in executive branch agencies.

The court’s ruling serves as a wake-up call for Markey, Warren, Khanna, and the entire Congress to reclaim their lawmaking authority. They must answer to voters for their decisions rather than leaving those decisions to legions of faceless bureaucrats.

For decades, agencies have enjoyed an unearned advantage in legal disputes while elected officials shirked their legislative duties. This ruling stops that trend by reaffirming the separation of powers and halting regulatory overreach. Contrary to the apocalyptic warnings, this decision offers hope for Americans struggling under the growing weight of misguided federal regulation.

Editor’s note: This piece originally was published by the Mackinac Center for Public Policy.

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