Supreme Court should end “Chevron deference” to restore checks, balances and reality
Paul Driessen
The left end of the political spectrum is relentlessly pursuing the transformation of America’s society, history, economy, speech, borders, governing systems, healthcare, energy and living standards. What it cannot secure via the ballot box and alliances with the legacy media and academic institutions, it works to impose through rule by unelected, unaccountable Executive Branch bureaucrats, collusive sue-and-settle legal actions, and court decisions that too often rubberstamp agency rules.
Instead of three co-equal divisions of government, the powers and functions of America’s Legislative and Judicial Branches have steadily been subsumed into an ever expanding, progressive and aggressive Executive Branch. Many legislators and judges have acquiesced or actively participated.
The federal workforce has swollen to two million non-military employees, who “liberally” interpret, apply and enforce laws and policies. The Federal Register of regulations, explanations and justifications has ballooned from 50,998 pages in 1984, to a Jabba-the-Hutt 90,402 pages in 2023. Few can read, much less comprehend and comply with the intricate edicts.
Members of Congress want to be seen “doing something” to address perceived problems, often by passing new laws and spending more money. However, instead of actually tackling difficult, controversial issues, they frequently make policy declarations, enact deliberately ambiguous statutory provisions, and rely on Executive Branch cohorts to interpret, stretch or even rewrite the vague language, mostly advancing agency powers and agendas.
The US Supreme Court’s landmark 1984 decision in Chevron v. Natural Resources Defense Council expanded this centralization of power even more significantly.
The “Chevron deference doctrine” holds that – when faced with regulations that are based on ambiguous, or nonexistent, statutory text – lower courts should always defer to administrative agencies’ interpretations of the text, as long as the interpretations are “reasonable.”
Chevron deference has let federal agencies expand their domain and control in hundreds of instances. Affected citizens often have little recourse, as long as the impact of an individual rule can be viewed as small and the agency interpretation as not patently unreasonable.
In those situations, the 2022 Supreme Court decision in West Virginia v. EPA is of little help, because it only addresses “major questions,” agency decisions that have “major” economic or political significance.
However, the Court recently heard oral arguments on two cases that give it an opportunity to curtail or end this wholesale deference to federal agencies. Both cases ask whether small fishing boats can be required to pay $700 per day to take observers along with them, to ensure the boats are following fisheries rules. Relevant law allows the government to require fishing boats to carry observers – but does not say the boats must pay for them, and Congress never appropriated any funds to cover observers.
So, on its own, the National Marine Fisheries Service decided it had the authority to compel boats to shoulder the cost. The case could have enormous implications for the perpetually expanding Deep State.
The Justices could rule in favor of NMFS, even though monetary impacts that are small by federal governing and budgetary standards are major, even potentially ruinous for fishing boats.
They could hold that the agency interpretation in this single instance was “unreasonable” – and overturn this single rulemaking out of thousands issued since 1984, while leaving the Chevron doctrine intact and available for future abuse.
Or they could overturn Chevron. Doing so would end the appalling deference to powerful government agencies; reduce the growing imbalance between the Executive and Legislative Branches; and make it harder for circuit and appellate courts to support activist regulators.
A reversal might even prod Congress to enact laws that tackle hard questions, use precise language, and tighten the reins on unelected regulators, especially when they serve presidents who want to “fundamentally transform” our energy use, immigration system, economy and military.
The third option would also help America curb climate and energy fantasy and tyranny.
It’s certainly true that most federal actions taken to “save our planet from the existential threat of manmade climate change” are “major” or “significant” in their societal, economic, ecological and national security impacts – and thus subject to the Supreme Court’s “major questions doctrine.”
However, that Court has not defined “major.” Moreover, even actions that most Americans would call “major” can end up being upheld, and agencies can claim significant actions are actually “minor” or can simply ignore court decisions that don’t apply explicitly to the agency or action in question.
Even in the climate and energy arena alone, hundreds of “minor” decisions can coalesce into massive disruptions and costs. It’s certainly reasonable to argue that questions of Chevron deference should examine the totality of impacts – and whether a decision can actually pass a rational, evidence-based “reasonableness” test. To cite just a few examples, is it reasonable to defer to federal agencies that:
* Impose government-wide mandates to terminate America’s coal, oil and natural gas extraction and use, based on computer models whose scary forecasts: (a) are built on the assumption that climate change and weather events are driven by fossil-fuel-related carbon dioxide and methane, which together represent barely 0.042% of Earth’s atmosphere; and (b) are not supported by actual, real-world data on temperatures, tornadoes, hurricanes, floods, droughts and sea levels?
* Keep oil and gas locked in the ground before they have any workable plan for replacing feed stocks for plastics, pharmaceuticals, fertilizers and thousands of other vital products?
* Compel families and businesses to replace gasoline vehicles and gas ovens, stoves, furnaces and water heaters with electric models – while regulators replace reliable, affordable fossil fuel power with intermittent, weather-dependent wind and solar power?
* Close down coal and gas-fired generators before sufficient, reliable, affordable replacement electricity is available – and before a single project anywhere in the world has demonstrated that wind, solar and battery electricity alone can power even a small village?
* Demand that families purchase supposedly energy- or water-efficient washing machines and dishwashers, even though the new machines must run longer or even twice to get clothes or dishes clean – thereby requiring more electricity and water?
* Effectively mandate electric vehicles before there are sufficient charging stations, electricity for those stations, or even metals and minerals to manufacture all the EVs, charging stations, wind turbines, solar panels and transmission lines?
* Assert that wind, solar and battery power are clean, green, renewable and sustainable, while ignoring the monumental amounts of mining and processing – and attendant habitat and wildlife destruction, toxic air and water pollution, and child labor – involved in obtaining the nonrenewable metals and minerals for those technologies?
* Insist that the United States slash or eliminate its fossil fuel use, while China, India and 100 other countries (including Germany) are extracting and burning more oil, gas and coal every year?
Courts should not view government actions in a vacuum. Many agency decisions are reasonable only in an alternative universe where individual and cumulative economic, ecological and social realities play no role. The era of Chevron deference should be brought to a close.
Paul Driessen is senior policy advisor to the Committee For A Constructive Tomorrow (www.CFACT.org) and author of books and articles on energy, pollution, climate change and human rights.
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Arguably, all the actions towards The Green New Deal or Net Zero are covered by West Virginia v EPA and the major issues doctrine. Chevron deference being removed would fill an excuse for legislating from the bureaucracy in defiance of WV v EPA.
Many decades ago, the courts had a standard that if a law was so vague that reasonable men could disagree on what it meant, then that law was “unconstitutionally vague”.
It’s time to return to that standard. Letting the bureaucrats, “fill in the details” means letting the unaccountable, unfireable, bureaucrats write the laws.
I would suggest the Pendleton Act was a bad idea, and at least all senior staff should be political appointees, so they can be removed when they fail to follow the policy of those who appointed them, or leave when their party loses an election.
The Pendleton Act was only intended to prevent a President from supplanting the brain-dead political supporters of his predecessor with his own brain-dead political supporters. The real problem is policy making by unelected Federal bureaucrats who are unaccountable to either the executive or legislative branches, and will therefore gravitate in allegiance towards the policies of the party most disposed to the expansion of Federal power, i.e., today’s Democrats.
Here’s the fix:
https://brownstone.org/articles/the-astonishing-implications-of-schedule-f/
What does that mean? If you are saying that, minus the Chevron Deference bureaucrats would have greater, more unrestrained power, how do you come to such a conclusion?
Chevron deference only requires that the interpretation of the law by the agency be reasonable, and acts like “push” in playing 21 in a casino, that all ties go to the house, rather than litigants and the bureau having equal status in determining the meaning of a law. The issue is Congress not writing specific laws, and the Democrats relying on their allies in the bureaucracy to make policy they could not get through the legislative process.
Congress does write specific laws
Waters of the United States is a prime example of a quite specific law , but EPA got wrong in a obvious way – which SCOTUS in a unanimous decision didnt mean occasional water courses/swampy ground.
Its purely over reach which is what the Courts are for. Doesnt mean the rules, by the EPA, about actual waterways of the US are invalid.
Anyway Congress has to legislate to allow rules to be written.
Executive rules can also come into it
The Clean Air Act, the subject of West Virginia v EPA, was sufficiently vague Obama tried to implement his Clean Power Plan through regulations after it had been rejected by Congress.
And the Courts agreed with EPA
https://www.edf.org/media/supreme-court-rejects-challenges-epas-endangerment-finding
“In an order issued today, the U.S. Supreme Court declined to hear challenges to EPA’s Clean Air Act responsibility to address climate pollution. “
Where were they rejected by Congress ?
ok by me.
Given the verdict in the case of Mickey E Mouse v Steyn and Simberg even juries have passed the indoctrination threshold
Mann v Steyn punitive damages will be reduced to at most $9 on appeal. The governing SCOTUS ruling is State Farm v Campbell (2003), holding that any punitive damages more than a single digit multiple of compensatory damages is an unconstitutional violation of the 8th amendment second clause.
The thing that doesn’t make sense about a single digit multiplier is that if compensatory damages are low, as they are in this case, then the punitive damages will hardly have any effect, when their intent is to prevent future bad behavior.
SCOTUS logic is as follows. If compensatory damages are low, then there is no good reason to be punitive as there was no damaging bad behavior. If compensatory damages are significant, then a single digit punitive multiplier suffices. A8 clause 2 absolutely prohibits excessive fines. SCOTUS finally defined the lower jury bound on excessive.
I’m delving into this and it appears that the single digit ratio you cite is more like a guideline than a hard and fast rule. For example, with regard to State Farm v Campell, I found the following statement:
“The Court suggested that it would uphold punitive damages awards in excess of the single-digit ratio if “a particularly egregious act has resulted in only a small amount of economic damages,” and in the opposite instance, if an egregious act resulted in a large amount of economic damages.”
Thus, it will come back to an interpretation and judgement of what is egregious.
That is usually the case. For example, the major issues doctrine (WV v EPA) doesn’t say what is major.
OK then, lets go a magnitude larger of double digits as a multiplier to show we mean business. 99 X $1 =$99
That would be nice.
The rich are planning on making trillions from the $US200 trillion in spending Bloomberg estimates it will cost to stop warming by 2050.
We can stop warming in two months by eliminating farming. Starvation and food riots are your friends if you are serious about fighting climate change.
scvblwxq:
Net Zero activities to stop global warming will GUARANTEE higher temperatures!
See “Net Zero catastrophe beginning?
https://doi.org/10.30574/wjarr2022.16.1.1035
Oops!
https://doi.org/10.30574/wjarr.2022.16.1.1035
Very nice article / summary. This is the crux of the matter:
‘The Federal Register of regulations, explanations and justifications has ballooned from 50,998 pages in 1984, to a Jabba-the-Hutt 90,402 pages in 2023.’
Imagine ol’ Moses trudging down Mt. Sinai with these ‘commandments’ inscribed in stone – he’d still be up there. Actually he wouldn’t – I’ve been there, and there probably isn’t enough rock in the Sinai peninsula for the purpose.
As for SCOTUS doing away with Chevron, I’m hopeful, but pessimistic. Starting with John Marshall, there’s always been a big difference between the Constitution and constitutional case law. I have always thought of the latter as a ‘biased random-walk process’, where the bias is heavily in favor of Federal power, i.e., there have been some good rulings at the margin, but too many of the ‘landmark’ decisions have stunk.
Regarding Moses- too bad everyone doesn’t just go along with those 10 commandments and give up all the rest of the religious BS- which has gotten so abundant, it’s become like the mountains of bureaucratic “regulations, explanations and justifications”. Not to mention hatred and wars.
Good idea Joe. You following number one?
Nope, I’m an atheist.
‘Religious BS’ only arises when public acceptance / support of privately held beliefs with little supporting evidence is mandated through State coercion. Net Zero / climate alarmism are current examples.
Sure, but look at all the complexity religions come up with- elaborate scriptures, priests of one kind or another, temples that are often extremely expensive- then they attack each other- verbally or with weapons. Perhaps instead of saying something about the 10 commandments, it can be simpler with the “golden rule”.
I think that speaks much more to the flaws in human nature rather than religion per-se. There’s that old John Lennon song “Imagine” – but the problem with that is if none of humanity had any religious beliefs, people would surely find plenty of other things to argue about. And subjugate and kill each other over.
There’s just that persistent human notion of “I’m doing it the right way and others are not” and “My way is the best and only way”. This tendency permeates not only religions but politics, government and sadly the sciences.
Following the “Golden Rule” would serve society well.
He forgot to mention bribed and blackmailed.
“…as long as the interpretations are “reasonable.”
What is considered reasonable is going to be very different from the perspective of a bureaucrat or politician with an eighth or ninth grade science education listening to an academic whose funding stream depends on pro-AWG hysteria, or even a billionaire who hopes to force the public into replacing the appliances they own with new ones promoted to address a never ending obsession with “climate change”; versus folks who are expected to pay more, live less comfortable lives, and so forth. This is the problem with a vague standard like “reasonable” without spelling out a metric for determining “reasonable.”
People may find this unbelievable, but many Federal laws are written to actually prohibit using a benefit/cost analysis as a metric for how reasonable they are.
‘…a bureaucrat or politician with an eighth or ninth grade science education…’
Not just this, but the degree, or even advanced degrees, in ‘disciplines’ that extol the virtues of centralized government.
I’ve talked to many politicians over the years- and I doubt any had even an 8th grade science knowledge. And how about those burro-crats at a Congressional hearing who had no clue what % of the atmosphere is CO2. I think one said 9%!
Saw that – IIRC I think the lowest estimate was 5%.
Yuh, I don’t recall which agency or department they are with- other than they were in some way involved with the climate thing- and should have known the answer. To be off a small amount would be OK, but off by an order of magnitude is absurd. Actually, 2 orders of magnitude.
Some states are just as bad- certainly Wokeachusetts.
The left end of the political spectrum is relentlessly pursuing the transformation of America’s society, history, economy, speech, borders, governing systems, healthcare, energy and living standards.
The bifurcation of American society is a concept borrowed from the French Revolution of the last years of the 18th century and hardly applicable today in the US. The situation is too complex to place the population into two indivisible camps. Much of the American elite, among the wealthiest people in the world, are classified as leftists while the descendants of the agrarian rurals are considered conservatives for embracing their antique societal notions. Cultures change over time and that has resulted in a mixture of values that include both the left and right and neither. Consumption of dog meat and the marriage of teen-age girls is anathema on both sides of the phony divide. The killing of unborn babies is accepted by some of both and rejected by some of both. Freedom of speech depends on the context, the speaker and the speaker’s affiliations as much as his place in the spectrum.
The most important part of the societal division is, as always, who gets the money. In the case of the Net Zero fiasco the most interested parties, those with the most financial opportunities, have ignored their assumed place on the scale in favor of positioning themselves for maximum profit. Capitalist enterprises are enthusiastic participants in transitioning from hydrocarbon energy to renewables if there is an opportunity to be involved on a government guaranteed rate of return. The leftists see Net Zero as a process for them to extract research and design funding and determine technological features. They are all in this together.
Nice, GC – I think you’re one of the better writers here. I’ve made a note of one of your previous comments that I liked: https://wattsupwiththat.com/2023/10/19/nyt-claims-record-september-temperature-indicates-accelerated-climate-change-it-doesnt/#comment-3803725
Do you post comments elsewhere? Written any books?
You misuse the term capitalist. Using the power of the government to make money is not capitalism. No wonder the youth think free markets are bad.
Maybe I’m over-generalizing on your response to general c, but hasn’t the term crony-capitalism been in use for many years, if not a decade or two.
I use the term “phony-socialist” to describe the young, starry-eyed kid dupers.
‘The situation is too complex to place the population into two indivisible camps.’
It is and it isn’t. As you point out, there are a lot of cultural examples that don’t neatly fall into place. However, if one just considers ‘Left’ and ‘Right’ as a continuum between collective and coercive behaviour on the Left and individual and voluntary behaviour on the Right, most of the ‘complexity’ disappears.
Your energy example is illustrative – there is nothing voluntary about the current ‘transition’ from hydrocarbon energy to renewables, hence the term ‘capitalist enterprises’ is incorrect – they’re fascists, and therefore of the Left.
Chevron deference is gone. The NMFS rule is a clear violation of the 5th Amendment last clause. SCOTUS knows this, because they deferred the orals until after a second ‘identical’ case was added so that new Justice Jackson did not have to recuse (she sat on the appeal that upheld Chevron in the first case).
The “law” is even more complicated than the climate. 🙂
Law school takes only three years. The Bar exam (when I took it) was 12 hours over two days. Med school is 4 years plus a 1 year internship plus (for specialties) a 3-4 year residency. Climate ‘science’ has taken over 40 years and 6 IPCC ARs—and we are just getting warmed up showing it is wrong.
Nuts!!!
I know nothing about the fishing industry- but I bet many small fishing boats are lucky to catch $700 worth of fish on many days.
Well it’s simple Joe. They want to ban fishing. They don’t have authority to do so. But they can make it uneconomic for a fisherman to fish. And then somehow it will be the fishermen who take the blame for there not being enough fish. But no worries peeps, we’ve got these maggots and beetles for you to eat. Oh we’re short on maggots but there’s this ‘safe and effective’ shot you need to take…
“ And then somehow it will be the fishermen who take the blame for there not being enough fish. “
Thats so true. or do you have a credible theory about whats happened to the fish. setting quotas is the normal method to sustain existing stocks and for some critical species ban it till it restores.
If my insurance doesn’t cover or allow idiots on board, do I have to change the insurance (or does the govt provide insurance for the regulator, and require my insurance to abide?)
If the regulator falls overboard and dies in the first hour, is the $700 waived, or just pro-rated?
Is that $700 for the entire 24 hrs of the day that I plan to remain out?
Will cameras be required …?
If the regulator pukes all over my boat do they have to clean it up?
If the regulator wants to pee in private do I have to turn off my cameras for her?
If I want to pee in private, and the regulator has to turn off their camera, what are the odds that a big swell displaces the regulator, and the engines go out and I can’t circle around?
With regulators on board, who decides if the weather is too rough?
Do they have to bring their own food?
Do I have to allow them use of my galley?
What are the chances that coast guard inspection rates will increase for boats that carry regulators?
If my safety standards exceed the govt’s by a bunch, does the regulator need to comply with my standards?
If I decide to stay out for another day, how much notice do I need to give the regulator?
If it is raining really hard, out & back, do I have to allow the regulator in the cabin?
Wher is the regulator going to sit, sleep, shit, eat? Does the regulator have to take all of her garbage and waste with her upon return?
Since it is more likely that harm by elected officials that cheat/lie/steal is greater than any real harm from commercial fishermen, shouldn’t congress be assigned a private citizen nanny/observer and have to pay $700/day out of their pockets. NMFS biologist Brad Hanson ‘accidentally’ kills whales because of lack of oversight … he needs to pay $700 (or more) per day for private oversight.
All good questions. 🙂
I left it a little short with respect to the whales; Brad Hanson killed ENDANGERED whales and says his research is worth the harms.
Then his agency wants higher oversight to make sure fishermen are not causing any harm.
The fact of the matter with all government “services” is that more and more money is required to provide less and less service.
Hiring people to put more checkmarks on more forms is a waste of resources, yet that is exactly what happens with each additional page of government regulation.
Government is the problem and must be downsized drastically.
The Chevron deference decision will go down in history as one of the most egregious misinterpretation of the US Constitution and misunderstanding of the Judicial branch’s role in American society.
If I was arguing this most recent case in front of the Supreme Court I would point out to the learned judges that it is the job of the JUDICIAL branch to interpret “…ambiguous, or nonexistent, statutory text.”. One of the whole points of the Judicial branch no matter at what level is to settle disputes between parties due to difference of interpretation of a contract, law or even its relationship with the Constitution.
By claiming that the interpretation of the bureaucrats should hold supreme confers judicial powers on the executive branch. It doesn’t matter what the ‘size of impact’ was nor how ‘reasonable’ the interpretation may (or may not) be.
The Chevron deference decision certainly reduced the number of cases the courts have to hear given that there is little hope for many people who might otherwise sue a government agency over their ‘interpretation’ of a law so they simply don’t even try. But its not the judicial branches job to make less work for themselves in much the same way that its not Congress’s job to reduce their workload by passing vague, misleading and easily misinterpreted laws. This creation of a “Someone Else’s Problem Field” by these two branches has been a direct cause of the concentration of so much power in the President’s hands.
The President of the US was meant to have the LEAST amount of power. By infusing so much power in the Executive Branch the other 2 branches have abdicated their responsibilities to be ‘co-equal branches’. There would be little fear in the populace over ‘scary orange man’ or ‘doddering old fool’ holding the position of President if the other 2 branches would just do their jobs.
Push comes to shove we can only hope this current Supreme Court with this current case does their job and reverses this most egregious decision of their predecessors.
I don’t know if the SC cares about the trickle down impact
The local regulators, where I am, understand that “the hearings official has to interpret the code as we direct him to … so you will just be throwing away your appeal fee.”
Low-information representatives make low-information voters of us all.
AMEN.