The most important Event of the past week was NOT the Presidential Debate between Trump and President Zombie (formerly known as Biden). It was important.
Related: Bad Week for the Deep State – Chevron Deference is Dead; Admin Courts on Thin Ice
Biden should resign or be removed by the invocation of the 25th Amendment based on cognitive failure. And someone, IMHO, needs to arrest Jill Biden on the charge(s) of “Failure to protect against Elder Abuse.”
That debate took the oxygen out of our Public Square, but compared to a number of decisions handed by SCOTUS (Supreme Court of The United States), it was just a sideshow. This decision to burn the Chevron Doctrine to the ground is important.
“THE THREE HAPPIEST WORDS IN THE ENGLISH LANGUAGE TODAY – “Chevron is overruled.”
I’ve previously posted about this overreach by NOAA’s (National Oceanic and Atmosphere Agency) NMFS (National Marine Fisheries Services) here and here. Steve did the same here. NOAA tried to force government human “monitors” on board fishing vessels and to force fishermen to spend lots of money on specific monitoring equipment (and the data services to relay that data). About $700/day/monitor. Not only did it violate the Fourth Amendment, but the courts also found that the agency violated the Administrative Procedures Act (“APA,” 1948) that set up the structure of how mere Executive Branch agencies could promulgate “regulations with the Force of Law.”
If you look at the Constitution, the ability to legislate is strictly a function of the Legislative Branch. But it was drafted and signed into Law when Progressivism was rising fast, and they took advantage of the growth of the Federal Govt and did the PR push that “mere legislators don’t have the expertise to make such laws; let the “experts” do it for you.” Our Elected Representatives bought into that Progressive philosophy regardless of their own Duties in the Separation of Powers as outlined in the Constitution – THEIR Foundational Law.
SideNote: Funny, isn’t it, that when it comes to abortion and other issues of Morality, Progressives get all in a tizzy about the Separation of Church and State as if there was a real firewall there.
SideNote to the SideNote: there is, but it only keeps the Government from establishing a State religion. How’s that working concerning LGBTQRSTUVWXYZ and the Government pushing that secularized sexuality religion down our throats (and into our minds and hearts)?
But when it comes to the Separation of Powers, they either remain silent or allow that philosophy to have lots of leaks by which to have us Ruled by technocrats vs Governed by elected representatives.
So, unelected, unaccountable, and unassailable bureaucrats whose ONLY Constitutional duty is to “faithfully execute the Law” as they report to the President to whom that command is laid. Here’s the background (emphasis mine):
Today, attorneys for a group of New Jersey herring fishermen landed a significant victory at the Supreme Court. With its ruling in Loper Bright v. Raimondo [and Relentless v. Department of Commerce -Skip] the Court has overruled the Chevron doctrine and restored the balance of power between Congress and the Administration. The Loper Bright decision was issued alongside Relentless v Department of Commerce.
The fishermen in the Loper Bright case face an unlawful requirement imposed on them by an Executive Branch agency that could force them to surrender 20 percent of their earnings to pay at-sea monitors. Because that fee resulted from unlawful overreach and threatened their ability to make a living, the fishermen decided to challenge the requirement in court four years ago. After a split decision in the D.C. Circuit, the Supreme Court decided to review the Chevron doctrine, which is the legal theory the government cited to justify its controversial monitoring rule. For 40 years, Chevron has required federal courts to abdicate their constitutional role to interpret the law by deferring to agency interpretations of statutes whenever those same agencies deem the law “silent” or “ambiguous.” In practice, such deference permitted agencies to engage in egregious overreach, often at the expense of ordinary citizens.
Bill Bright, a Cape May-based herring fishermen and eponymous plaintiff in Loper Bright, offered this statement: “We are grateful the Court has overruled Chevron. Today’s restoration of the separation of powers is a victory for small, family-run businesses like ours, whether they’re involved in fishing, farming, or retail. Congress never authorized industry-funded monitoring in the herring fishery…
Former U.S. Solicitor General Paul Clement, who argued on behalf of the fishermen before the Supreme Court, added the following: “
The Court’s decision puts to rest an interpretive methodology that has seriously distorted how the political branches operate for far too long. Courts should ask what the law means, not whether it is ambiguous, and in close cases, the tie should go to the citizen, not the government. We are gratified that the Court restored the constitutionally mandated separation of powers.”
In the Supreme Court’s opinion, Chief Justice Roberts wrote:
“The deference that Chevron requires of courts reviewing agency action cannot be squared with the APA.” He went on to say, “Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do.”
IMHO, this headline encapsulates everything I’ve been saying for years: “The Supreme Court Firebombs the Administrative State and Tells Congress to Get Off Its Butt and Work“…”In short order, many of the reasons we gradually, like a frog in a pot of boiling water, transformed from citizens into subjects have been demolished…Today’s decision doesn’t prevent agencies from making rules, but it doesn’t prevent citizens from contesting those rules in court.”
And that is the Executive Branch making up its own laws under the rubric of “Federal Rulemaking”. And as the headline maintains, Legislators should now be made to make their Laws COMPLETELY and stop throwing their half-grown bills over the wall and let others finish the work THEY should be doing. This should:
- Have then creating smaller bills to more fully flesh them out – I’m hoping that these thousands of pages “Omnibus” bills will be now easily litigated by Citizens with much more of a chance of success.
- Result in much BETTER bills because they will have to sweat the details – ALL the details.
And because of that, they won’t have the time to meddle as much in our lives. Uber-Left Law Professor Laurence Tribe concurs:
Is there a 1-900 number where someone will read this to me over the phone in a sultry voice? https://t.co/V4jhvxPLH2
— Marc J. Randazza 🇺🇸 🇮🇹 🇧🇷 (@marcorandazza) June 28, 2024
I disagree with one part: unrealistic. Instead, it SHOULD be expected. We all should be demanding more of the folks whose butts we put into those seats.
To bring it back to NH, I’m re-purposing something I emailed to Grokster Ann Marie where the District 17 Superintendent Thomas Ambrose is trying to redefine emails containing student sexuality as a “student record” so as to bypass a valid Right To Know demand:
…An email is NOT a student record which is a record/entry in their IT system. An email is not such a record even as it is a GOVERNMENT record – there is no protection of privacy for a parent sending an email to a government worker. It then becomes Public. So he’s off base on that.
..and we’re a Dillon’s Rule State. Which, if strictly kept, has ALWAYS made us being an “anti-Chevron Doctrine) State as “agencies” can only do what the Legislature specifically delegates. Just as NOAA overreached in spite of the Federal APA, how many of OUR agencies have done so despite JLCAR?
This ban of the Chevron Doctrine, if this was MMA, is a leg sweep takedown to put him onto the legal map.
Before I forget, here’s the salient part of the Law against which SCOTUS viewed NMFS’s strong arm tactics against the fishermen:
In 1972, Congress passed the Magnuson-Stevens Fishery Conservation and Management Act, “to respond to the threat of overfishing and to promote conservation.” As part of that law, eight regional fisheries councils were created. Each of those councils, which is a business association, is charged with producing a fisheries management plan. Under the plan created for New England herring fisheries, half of all fishing trips had to carry a federal monitor. Originally, all the observers were employed by the federal government. Somehow, the National Marine Fisheries Service managed to lose money from its budget as the rest of the federal government porked up. In 2020, the management plan required the fishing boats to pay for monitors reporting to the federal government. The cost was over $700. Many fisheries complained that this additional expense resulted in zero profit or even a loss for a day’s fishing.
Congress didn’t authorize billing private fishing companies to pay for federal monitors. But the Department of Commerce interpreted the requirement that it may “require that one or more observers be carried on board a vessel of the United States engaged in fishing for species that are subject to the plan, for the purpose of collecting data necessary for the conservation and management of the fishery,” to mean that half the fishing boats had to carry deadweight that they paid for.
…
- Whether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.
- Whether the phrase “necessary and appropriate” in the MSA augments agency power to force domestic fishing vessels to contract with and pay the salaries of federal observers they must carry.
Result: Vacated and remanded.
The Administrative Procedure Act requires courts to exercise their independent judgment [instead of deference to the agencies because of the Chevron Doctrine -Skip] in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because a statute is ambiguous;
Chevron is overruled.
And this is part and parcel of the “overreach and self-justification of it” that I’ve been talking about for years. If you want, a more more thorough legal cut-and-paste is here. And it points out the whole issue of arbitrary and capricious:
…federal agencies can adopt widely different interpretations and enforcement policies depending on who’s in power, and that makes the legal/regulatory environment inherently unstable for Americans. Also, as Justice Clarence Thomas adds, it’s also flat-out unconstitutional. Chevron makes the judiciary subservient to the other two branches as a matter of structure and not just judgment…
And we’re back to the end goal of Democrats/Progressives/Socialists – being ruled by technocratic “experts” who, in their eyes, only have our best interest in their TOTALLY non-partisan hearts. Or as the post called it “the Rule of Whim” Anyone who has ever reviewed the political donations of government workers knows that a HUGE pile of human excrement.
And yet another reason that I really like this decision – Justice Kagan is against it DEMONSTRATING that she’s for the Administrative State (and you wonder why Democrats view SCOTUS as a Supra-Legislature):
Justice Elena Kagan wrote that Chevron deference “has formed the backdrop against which Congress, courts, and agencies—as well as regulated parties and the public—all have operated for decades. It has been applied in thousands of judicial decisions. It has become part of the warp and woof of modern government, supporting regulatory efforts of all kinds.”
And that’s the problem as it should be LEGISLATIVE, not regulatory. I just can’t say that enough!
