REP. HARRIET HAGEMAN
CONTRIBUTOR
For two generations the Chevron Doctrine has given federal agencies an unfair advantage, outsized authority and unconstitutional power in interpreting statutes and issuing rules. Friday, the Supreme Court righted this wrong.
Carved into the stone above the Supreme Court’s grand entrance is the phrase “Equal Justice Under Law.” But for as long as Chevron deference has existed, the courts have favored the desires, opinions and agendas of unelected bureaucrats, while placing unfair burdens on the American people. Established in the 1984 case Chevron v. NRDC, this doctrine instructs courts to defer to federal agencies’ interpretations of laws where the underlying statute is, according to the agencies themselves, ambiguous or even silent.
As a career Constitutional law and water rights attorney, I’ve seen first-hand how Chevron deference tips the scales of justice against the American people and in favor of the federal government. In short, the Judiciary surrendered its duty to interpret and apply the law for nearly 40 years, blindly trusting agencies to interpret the scope of their own power and what the law means.
I’ve spent decades fighting against Chevron deference in my role as a private attorney and while working as Senior Litigation Counsel for the New Civil Liberties Alliance (NCLA), a public interest law firm dedicated to protecting the constitutional rights of American citizens against unlawful regulatory overreach.
Chevron deference strips authority from our courts and emboldens federal agencies to exceed and abuse their congressionally designated powers. While the best antidote for an oppressive, overbearing executive branch is a strong Congress, the decision by the Supreme Court to end Chevron deference is a huge step towards restoring our constitutional freedoms and separation of powers.
There has been much handwringing over this decision by those who support giving the administrative state unlimited power. How will the government function? How will legislators and courts keep up with all this extra work? How will anyone know what a bill or statute means? We need the “experts” to decide! Let’s examine this hysteria.
For roughly two centuries our federal government functioned – and I might argue functioned better – without relying on the Chevron Doctrine. Congress passed laws; agencies enforced them and if adjustments were needed, then Congress could pass or repeal legislation to fix particular issues, or our courts would adjudicate them. While not even the greatest Congress can avoid some ambiguity when writing laws, more carefully thought out and thoroughly researched work can reduce it. Courts have always interpreted the meaning of laws – and being required to “defer” to an agency’s view simply because it could be deemed “reasonable” should be offensive to judges everywhere.
Congress has been ceding its legislative authority to unelected bureaucrats for far too long. Administrative rule-making, which the citizens and businesses must adhere to, has far outpaced actual lawmaking in America. The Biden administration issued 4,429 final rules in 2021. That number was 3,168 the following year. Over the same period, Congress passed only 365 bills that became law. This discrepancy is a stunning reality check – it has been federal bureaucrats, not your elected representatives, that have been legislating, and not one of them is accountable to you.
The end of Chevron deference is the return to a system of government more aligned with our Constitutional Republic (despite the fact that CNN apparently doesn’t know what that means).
Congresswoman Harriet Hageman is serving her first term as Wyoming’s at-large Member in the U.S. House of Representatives. She serves on the House Committee on the Judiciary, the Select Subcommittee on the Weaponization of the Federal Government and the Committee on Natural Resources.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller.
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Gruesome – American Psycho – Newsome to the rescue?
I say 90% chance Biden is on the ballot in November. Democrats are trapped.
The Titanic already hit the iceberg and it’s too late to change captains.
The states conduct elections. It may be too late to make changes.
Hard to say. This is really unplowed ground, with an unpopular incumbent in his 80s who is widely perceived, even by Democrats, as essentially senile and not operating with a full deck of cards – a very scary weakness for the leader of the free world. It seems unlikely that Biden can erase this impression, he certainly didn’t last evening.
Democrats are desperate to defeat Trump – they fear him much more than they support Biden. If a significant group of powerful political leaders of the Democrat party were to sit down with Biden and tell him he needs to go, I think he’d have to do that. If he ignored them, and took his party down in flames in November, his legacy would be ruined forever. Who would want that? I don’t even understand why either Biden or Trump wants to be President, a very tough job even for younger people in the prime of their capabilities.
Agreed, Biden would have to agree to step aside.
A debate this early in the year is unprecedented. Neither party has officially nominated anyone. The reason this debate was held before the convention was to quiet Biden’s critics in the party. He agreed to a debate to show he was still up to serving and he failed.
But will he step away from the nomination? He doesn’t want to go. Dr Jill doesn’t want him to go. The next few weeks will be telling.
Soylent, I disagree his handlers have known for at least a year that the debate would go as it did. That’s why they wanted it moved up. The Newsome appointment would be understood as a health issue replacement necessity and moving up the debate provides time for sufficient Newsom grooming prior to the nominating convention.
Nope. It’s very complicated to replace biden, now, and it gets worse starting the end of July. First, he must withdraw. If he doesn’t he’s the nominee. End of story.
If he does withdraw, it matters greatly when. Ohio requires the candidate’s name on the ballot on a date before the Convention. The Democratic National Committee plans to do a ‘virtual vote’ of the delegates to make it legal to submit Biden’s name. At this point, either Biden’s name is on the ballot or no one’s, unless they get over half of the 4000 delegates to back a different candidate in the virtual vote taking place at the end of July. Lots of luck doing that! If Biden wins Ohio in November, the electors are pledged to vote for him. Any other democrat must cede the Ohio electoral votes.
If he withdraws AFTER winning the nomination, it gets worse. Wisconsin and Nevada have strict election law rules barring the replacement of a nominee for anything short of death or institutionalization. Electors are pledged in those states, so a different democrat would cede those state’s as well.
It is theoretically possible for Biden to be replaced, but win three states, taking those electoral votes away from the actual Democratic nominee!
You’re probably right. Seem like neither Obama or Biden want to give it up. I’d like to hear some of the Clinton conversations.
Not Clinton’s conversations. Too dangerous.
There must be exceptional circumstances under which the ballot can be changed. For example, death or incompacity. But even if so I doubt that Biden would agree to step down.
In some states, a nominee can only be changed by virtue of death or institutionalization, even if the candidate wants to withdraw.
And as early as July 9th (GA) for the parties to certify their candidate.
Wow. This has to be the worst 24 hours for the Democrats since Appomattox
-Kurt Schlichter.
No democrats were harmed by watching TV. Disappointment is all in their minds.
“We finally beat Medicare.” 😂
“Beat Medicare to Death”, was one of Trumps best zingers of the night.
Well, Simon. How gracious of you. 🙂
TRUMP 2024!!!! 😀
Janice… that is a not Simon the simpleton.
“simonsays” has always been “a rational” 🙂
Oh.😶🙂 Thank you for letting me know.
I doubt we will see the simpleton for a long time.
He has to rinse out and dry all his tissues. 😉
No offence taken and its nice to be described as rational.
I think the best Trump zinger was, “I don’t understand what he said, and I don’t think he does either.”
It should have been:
“I don’t understand what he said, and I don’t think he does either. [And it was very kind of you to cut him of before he further embarrassed himself.]”
Yes, “thanks, Mr. President”, the CNN moderator said in order to stop the horrible scene of Biden struggling to talk straight.
The CNN moderators actually did this twice during the debate, ending Biden’s babbling.
Although I must say, that was about the only help the CNN moderators gave Biden. For the most part, they handled the debate quite well, and I must say I was surprised at this.
I like this particular debate format. I don’t like debate participants yelling over each other. I want to hear what each one has to say, one at a time.
Janice, Biden stating that did seem out of context didn’t it. He’s gone.
Out of context, yes, and…. Freudian!
He mumbled for 15 seconds before he spit it out. Who knows what the sentence was supposed to be.
Trump’s best line in the debate.
“I’ve seen your swing, you’re no 8 handicapper” or words to that effect.
Tickled this golfer’s Funnybone.
“Ooo! Oooo! Operator! You are and all the going to let us programs once we start uh, malarkey, for the next time up and down and over and out and, uh, individuals and you are a lying dog-faced pony soldier!” Joe
say what? 🙂
Hi, Joe! It’s me, Joe Biden. Here’s how I sum up America “in a single word!”
Janice must have watched the debate to see how to structure sentences.. 😉
One word to describe America..
Zwubdifaflrigration
I remember a segment during the Sarah Palin-Joe Biden debate. Biden was going on and on about the first article of the Constitution describes the Presidency. I said, “Sarah, hammer him!” The first article describes the Congress and its powers. The second article describes the Presidency and its powers. For someone to be in Congress for decades and not know that is atrocious. However, Sarah didn’t realize she had a killer moment. These idiot politicians run for Federal office and have apparently never read the Constitution.
“For someone to be in Congress for decades and not know that is atrocious.”
Especially since Joe Biden was Chairman of the Senate Judiciary Committee when he was in the U.S. Senate. It should be expected that the Chairman should know a little something about the U.S. Constitution. But no!
Progressives rely on rule by “experts”, i. e apparatchiks.
If you ask a progressive, they will always tell you that they are the experts.
While in engineering school, we always laughed at the concept of experts. We defined expert as a former drip under pressure: “x-spurt.”
We used to say back in the day that an expert was someone 50 miles from home with a box of slides.
‘Ex’ is a has-been… ‘spurt’ is what a dog does to a tree.
Luke, search your feelings. I am your expert.
expertachiks
If a law is ambiguous, the proper course of action is to go back to Congress for clarification.
Just deciding to let those who are charged with implementing the law, decide what it means is a cop out at best, dereliction of duty at worst.
It also unconstitutionally transfers law making power from the legislative branch to the executive.
Correction…. to the bureaucracy.
The bureaucracy is the executive branch.
You’re right, Mark – but we often think of the president as being in control of the executive branch. Over the years (perhaps starting with the Hatch Act) the bureaucracy under the executive branch is no longer under control of the president. It is its own branch of the government in practice.
The BBC’s ‘Yes Minister’ pretty well describes the whole mess :<)
Yes, that would be the correct way to proceed. However, Congress people are lazy and want to be re-elected, so they passed the buck to various regulatory agencies that they created.
They know (or now knew) exactly what they were doing in passing vague or ambiguous laws. They were enabling their loyal bureaucrats to write onerous and punitive laws that would either fail in open debate or result in negative voter reaction. Chevron Deference was an effective end run to avoid taking responsibility for unfair or unpopular regulations.
Now I wonder how long it will take before either a new administration or the courts start an examination of all the unconstitutional and arbitrary and capricious regulations created under the Chevron doctrine and place a large part of the Federal Register on a bonfire.
Next up. Congress must declare war in order to invade sovereign countries.
and declare sanctions, which are a declaration of war.
no they’re not- more like a declaration that “we don’t like you anymore and won’t play with you”
except when a pres decides to have a “special military mission”
If Congress passes a resolution, that counts. The Constitution does not specify what constitutes a declaration of war. There is no specific form to be filed.
The Constitution does specify what constitutes a declaration of war. A vote by Congress.
Does this mean more legislating at the expense of grandstanding, bickering and bloviating?
Doing actual work – what a concept!
Great teaching article!
Eliminating Chevron deference was an easily predicted outcome from the egregious nature of the underlying cases. I agree with Hageman’s two consequences. Congress needs to do a better job of legislating. And courts are evolving a set of legal doctrines to apply when they don’t, for example the major questions doctrine underlying West Virginia v EPA.
Congresses abdicated to administrative rulemaking largely because regulation is necessarily detailed and requires expertise. That seems inevitable. But what SCOTUS has done with several recent decisions, including Sackett and now Loper, is to make it clear that expertise or not, agencies are still chained at the hip to what Federal law authorizes them to do.
The agencies and their defenders have always tried to promote the need for technical expertise as an excuse to override Congressional intent and judicial rulings. Chevron was their get out of jail free card. For the most part the agencies have the biggest barn full of experts (both their own staff as well as experts from massively funded environmental lobbying groups). They used those assets to simply create their own legislation, which the Constitution forbids. Now they whine that non-expert judges and justices will ignorantly overrule their expert judgment. It is NOT a case where judges will decide they know more than the experts – it is that judges will decide if agencies are operating with or without legislative authority.
Of course, the agencies can always go back to Congress and ask for specific legislative authority to do what they will … but the problem for them is that Congress represents all of the American people, the regulated and not just the regulators. Killing Chevron finally leveled the playing field to give power back to the regulated.
If the enviros and warmunists are PO’d now, just wait till SCOTUS overturns the power of EPA to regulate so-called “greenhouse gas emissions”, which term cannot be found anywhere in the 1990 Clear Air Act Amendments that regulate air pollution. If Congress wanted to regulate CO2 as a pollutant, then it would have said so in the CAA. But they did not. EPA without legislative authorization egregiously declared CO2 to be a “pollutant” enabling them to regulate it under CAA, and in the 2007 decision “Massachusetts v. EPA” a more liberal SCOTUS allowed that to pass.
That decision can be considered henceforth to be on life support until it is overturned. It is just a matter of time and the right case coming before SCOTUS.
I don’t know what “the right case” could be and who would “have standing’ to bring such a case.
Most of the cases decided recently have reporters declaring that the SCOTUS declared they overturned a lower court ruling when in fact the current Roberts majority just declared that the plaintiffs just “did not have standing” to even get into court.
Reminds me of the SCOTUS declaring that Texas, a party to the US Constitution had no standing to sue Pennsylvania, a party to the US Constitution, for not following a provision of the US Constitution regarding the conducting of elections and election law, specifically given to the state legislatures, not to a governor. SCOTUS said only the Attorney General of the US had standing. What?? The US Constitution is a contract between the States creating the federal government, not an agreement between the States and the Federal government.
W made a big mistake with Roberts, but he IS better than W’s first choice, but that is not saying much.
I think one of the best legal minds nominated to the Supreme Court was Bork, but Biden and company “Borked” him.
The U.S. Supreme Court failed the nation when it refused to hear the case brought by Texas and other States who claimed their rights were being violated because Pennsylvania was not following the voting laws of that State, but were instead following voting rules that were created by judges and bureaucrats and not by the State legislature, which is the only authorized body to make or change election laws.
Texas contended that changing these laws illegally would detrimentally effect Texas by turning a fair presidential election into an unfair presidential election.
And it turns out that the illegal election laws *did* harm Texas because they allowed an idiot like Joe Biden to be elected, and Biden promptly invited the world to come into the United States through the Texas border.
The U.S. Supreme Court cannot justify refusing to hear this case. They are the only entity with jurisdiction to hear cases between the States, but they refused to get involved, certainly for political purposes/fear of criticism. So they ignored the law and their duty, and now we have this petty dictator, Joe Biden, in charge as a result.
Only a State legislature can create or change election laws. Numerous Democrat States, during the 2020 election, had their election laws changed illegally, using the Covid Pandemic as an excuse, which gave an advantage to the Democrats and got Joe Biden elected.
Trump saw that some of these elections were using illegal voting rules, and a president is tasked with enforcing the law, so his efforts to expose these illegalities were a required duty for him. Joe Biden is trying to prosecute Trump for doing his duty and following the law.
it looks like Joe Biden’s prosecution of Trump is coming apart at the seams. The latest ruling by the U.S. Supreme Court practically destroys all the cases against Trump, including the local “conviction” in New York City.
On Monday, the U.S. Supreme Court will make their decision on presidential immunity.
Life is Good!
During the Oct. 2020 debate with Brandon, Trump publicly predicted they would steal the election.
gonna be a big party that day!
I take issue with the claim that the greatest expertise is held by the government agencies. Their “experts” are just as biased to the political views of their employers as “experts” who work in regulated industries. Where technical expertise is required to determine an appropriate action some mechanism to provide genuinely independent and objective expert evaluation should be required.
Given that for many years now the Federal agencies have been staffed by political cronies and DEI hires, they tend to be woefully short of actual expertise internally and depend largely on contractors who know well what opinions the agency expects them to offer if they expect to keep their contracts.
It’s not simply about experts. It is more about interpretation of rules. Whether or not a govt monitor is on a boat, being paid by the boat owner, doesn’t have a lot to do with fisheries expertise. It has to do with an obvious power grab (it is just amazing that someone in management thought they could get away with it).
‘They are our rules (says the govt), so our (sometimes varying) interpretation of our rules are always right.’
And once the regulators were told the significance of Chevron, they were perceptibly emboldened to grab for more and more power.
The discussion about experts seems to be an attempted distraction by the losers. Don’t let them distract you.
Looking at the looming PFOA/PFOS rules. My take on these rules initially was ‘..and where are the bodies?’ As I read the epidemicological data that first had come out about 2016-17 it appeared those living closest to the manufacturing facilities and consumed groundwater had higher risk of potential negative outcomes. Recently there has been much more research funding thrown at this issue, to substantiate the EPA drinking water rules for these substances. The next EPA cash cow. I guess they are considered ‘Emerging Contaminants’. These new regs are requiring drinking water system operators to remove PFOA down to as low as 4 parts per trillion. Don’t think this is listed in the Clean Water Act. Just something that kind of bugged me. Just thought I’d throw that out there…
Regards,
MCR
Good point … pretty sure that all this recent talk and action on PFAS contamination was not addressed specifically in the CWA. Yet another example of EPA using their experts as justification to create their own environmental law.
I didn’t write “greatest expertise”, I wrote “biggest barnful of experts”. The agencies have virtually unlimited resources, both on their own staff as well as augmented by their preferred pro-regulation environmental lobbying groups like NRDC. How many private businesses, let alone small businesses, can muster the sheer volume of resources that the agencies routinely bring to bear? Few if none.
What SCOTUS just did was more than leveling the playing field – they changed the playing field altogether. Instead of playing the regulatory game on the regulator’s own turf where they always have the biggest, best funded raft of experts, SCOTUS decreed that “it doesn’t matter that you claim better expertise if you are not Constitutionally entitled to regulate at all”.
The 3rd amendment bans the quartering of soldiers in private homes without consent.
How is being forced to pay the costs of inspectors that the government forces on boat owners, any different?
This outcome was expected; the enviros and regulators knew as soon as this case went to this Supreme Court that their power to unilaterally regulate absent authorization from Congress was dead on arrival. SCOTUS telegraphed this decision in mutlple cases over the last several years, including Sackett v. EPA.
This decision ranks right up there with the most substantial and consequential SCOTUS decisions of the last generation, including Dobbs, Sackett, and Heller.
So when is it someone is going to take Biden to task for diverting $1B from the Dept. of Transportation to fund a harbor assembly area for bloating, erm, floating windmills?
To my mind that is serious fiscal malfeasance, in violation of the FAR, and is an impeachable offense for abrogating the laws pass by Congress, again.
Biden has submitted a funding authorization request.
$2B for the Baltimore Key Bridge
$1B for the roads and infrastructure (apparently to replace the 1B he diverted)
~$1B for other projects (unspecified)
Is this a retroactive ruling? Do all the agency rules still apply as laws?
They tried to keep existing rules in place by saying they do “not call into question prior cases that relied on the Chevron framework,” as cases upholding specific agency actions “are still subject to statutory stare decisis despite our change in interpretative methodologies.””
It’s about time.
More good news. Thank you Rep. Hageman. All these government agencies are the problem not the solution. They need to be thinned out drastically. Just like weeding a garden.
Or draining a swamp.
With Rep. Hageman the people of Wyoming finally have representation in DC again.
There has never been a better time to be a lawyer in America!
This talk of bureaucrats creating rules and regulations is only part of the story. The armies of attorneys working for large industries, such as the pharmaceutical corporations, the hospital and health foundations, the “green energy” organizations, and the well funded NGOs, not Congress, create much of the legislation that goes to Congress in the first place. They may do this in cooperation with the bureaucrats but it aimed to the benefit of the financial interests, not the American people.
The whole point of this decision was to rectify the by-passing of congress., The 7500 rules verse the 365 bills demonstrates just how out of control the unelected bureaucracy and its armies of lawyers are. This decisions means a new army of lawyers can start undoing 40 years of bureaucratic overreach. As I said there has never been a better time to be a lawyer in America.
You are ignoring the fact that it is a huge army of attorneys working for special interests that creates the legislation which Congress rubber stamps, never studying or even reading once. Reportedly the Affordable Care Act was 33,000 pages, delivered to Congress 36 hours before a deadline to vote on it.
I don’t know just what that deadline was but it has been common for VERY MAJOR legislation to be introduced, and voted on, in the wee hours before a session of Congress closes, such as right before the Christmas holidays. What makes you think any new action of ‘lawyers in America’ will turn out any better?
Exactly it will be lawyers picnic. Lawyers always win even when they lose, it’s a great career especially in America.
In Japan, they limit the number of lawyers. It’s too bad we don’t do that here.
“The whole point of this decision was to rectify the by-passing of congress., The 7500 rules verse the 365 bills demonstrates just how out of control the unelected bureaucracy and its armies of lawyers are.”
The other day, Trump said he would ask people which they liked better, Trump’s cutting of taxes, or Trump’s cutting of rules/regulations?
Trump said the majority of people said they like him cutting rules/regulations the best.
The enviros may craft legislation to their liking, but it still has to pass Congress. That is where they lose.
But they rarely lose. Often Congress does not really know what they are voting on. They only know the sound bites and blatant propaganda put out by organizations like Covering Climate Now. Then also there are the powerful elected members who have been pushing the lies for decades.
Don’t forget the “sue and settle” strategy.
We need the experts to decide.
‘An expert is a person who has made all the mistakes that can be made in a very narrow field.’
Niels Bohr. (20th century physicist and Nobel Prize winner, a real one)
“We have not overthrown the divine right of kings in order to fall down for the divine right of experts”
-Harold MacMillan
Just out of curiosity, does and anyone know of a bureaucratic agency that has declared itself to be unnecessary?
Two complaints from the Declaration of Independence:
“He has erected a Multitude of new Offices, and sent hither Swarms of Officers to harass our People, and eat out their Substance.”
and
“For transporting us beyond Seas to be tried for pretended Offenses:”
Some things never change and tyrants are tyrants..
The Number 1 responsibility of government is to protect the population FROM the government.
Glad to see moving back in that direction.