I found this back on April 1 but it is no April Fool’s Day joke – it is serious stuff and shows that yesterday’s SCOTUS decision (on which I’ll have more to say later) was correct as we on the Right have been watching the rise of The Administrative State.
Finally, we may have seen the first major shot in killing the practice in which unelected, unaccountable, and unassailable (until yesterday) bureaucrats make Law even as they are in the Executive Branch and not the Legislative Branch:
When agencies make law in the guise of interpreting statutes, they rely on the courts to defer to their interpretations. But this judicial deference is unconstitutional. One problem is the judicial abandonment of independent judgment. When judges defer to agency interpretations, they depart from their judicial office or duty, under Article III of the Constitution, to exercise their own independent judgment. Recognizing this duty, Chief Justice John Marshall wrote in Marbury v. Madison: “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.” The judges therefore cannot defer to an agency’s interpretation without abandoning their duty – indeed, their very office – as judges.
-Columbia University law professor Philip Hamburger ( The Administrative Threat)
Yesterday’s beatdown was necessary and LOONG overdue. Lower courts have consistently applied a “judicial outlook” or shown deference to Government agencies in lawsuits against them on the idea that “they know better” as they make up regulations and rules (and during the pandemic, “guidelines”) that are really the Law to be obeyed and not just the bills that the Legislature (Federal, State) passes.
When you look at the bills, there are a lot of “holes” in them because legislators rarely take the time to REALLY write a bill that takes almost all twists | turns | exploitations | Law of Unintended Consequences into account. They simply throw it “over the wall” to the Executive Branch, dust off their hands, and say “see, we did something”.
They expect the Executive Branch minions to finish their broad strokes by adding all of the little details. And it is in doing that process, courts learned that it wasn’t the Legislators that created the Law as to the intent and practicalities but the bureaucrats that did most of the work. In doing so, judges show “Chevron deference” over the plaintiff(s):
One of the most important principles in administrative law, The “Chevron deference” is a term coined after a landmark case, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 468 U.S. 837 (1984), referring to the doctrine of judicial deference given to administrative actions. In Chevron, the Supreme Court set forth a legal test as to when the court should defer to the agency’s answer or interpretation, holding that such judicial deference is appropriate where the agency’s answer was not unreasonable, so long as the Congress had not spoken directly to the precise issue at question. The scope of the Chevron deference doctrine 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 own interpretation of the statute for a reasonable interpretation made by the administrative agency. Rather, as Justice Stevens wrote in Chevron, when the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s action was based on a permissible construction of the statute. The Chevron deference first requires that the administrative interpretation in question was issued by the agency charged with administering that statute being construed. Accordingly, interpretations by agencies not in charge of that statute in question are not owed any judicial deference. Also, the implicit delegation of authority to an administrative agency to interpret a statute does not extend to the agency’s interpretation of its own jurisdiction under that statute.
Generally, to be accorded Chevron deference, the agency’s interpretation of an ambiguous statute must be permissible, which the court has defined to mean “rational” or “reasonable.” In determining the reasonableness of a particular construction of a statute by the agency, the age of that administrative interpretation as well as the congressional action or inaction in response to that interpretation at issue can be a useful guide, if the Congress was aware of the interpretation when it acted or refrained from action, and when the agency’s interpretation is not inconsistent with the clear statutory language.In subsequent cases, the Supreme Court has narrowed the scope of Chevron deference, holding that only the agency interpretations reached through formal proceedings with the force of law, such as adjudications, or notice-and-comment rulemaking, qualify for Chevron deference, while those contained in opinion letters, policy statements, agency manuals, or other formats that do not carry the force of law are not warranted a Chevron deference. In such cases, the Court may give a slightly less deferential treatment to the agency’s interpretation, giving a persuasive value under the Court’s “Skidmore deference” analysis.
Since the start of the Progressive Era, it has been their goal to replace our Constitutional processes with “The Administrative State” in which non-partisan technocrat experts, quickly divining what Society needs where and then planning and implementing all the processes required to fill that “need” would rule (or in their words, “care for us”). The idea was to have the veneer of a Representative Republic but the real sausage-making that meant anything was done several levels downward.
The EPA case stopped this in its track (I hope and for a long time to come). Where there is much yelling going on that the EPA is keeping us safe during this time of Global Warming by having the Administrative State decide and demand that people obey it in the process of transitioning to “Clean/Green Energy”, we know that Congress never passed the Green New Deal.
So where do bureaucrats get their Power to do this when our “Law Makers” haven’t decided? They don’t have such Powers as the Legislature never gave to them.
This is a good example of deference shown by one part of Government to another – and SCOTUS stating “the game is now over”.
This ISN’T a case about Global Warming or the Environment – it IS ALL about the Separation of Powers between the Branches of our Government as outlined in our Constitution; there really should be no “sharing” of each Branch’s Powers with another. Legislators make LAW, the Executive Branch can only, well, execute/carry out that Law.
In fact, all of the other major decisions by SCOTUS end up, by one avenue or another, in starting the “stuffing back into the box” process in putting the Government back into its boundaries as set by the Constitution.
(H/T: Cafe Hayek)
