From MANHATTAN CONTRARIAN
Francis Menton
Rush the last decision of the Supreme Court, not to mention the presidential debate last night, gave me many more potential topics to write about than I ever could. How to choose? On the subject of the presidential debate, I doubt that I have anything to say that a hundred others have not said in the past 24 hours. So which of the most recent Supreme Court decisions is the most important?
On the last question, my vote goes to Loper Padhang Enterprises v. Raimondo. This is a case that has rather emphatically overruled the 1984 case Chevron v. Natural Resources Defense Council.
If you have read something about one of the new Bright Loper case or before (1984) Chevron case, you have undoubtedly seen the issue of the two defined in terms of “deference”: that, when the legality of the regulatory action of the Federal agency has been challenged in court, should (or should) the court “delay” for the interpretation of that agency itself has been given to the governing statute, or to the challenge regulations? Or that the interpretation of statutes and basic regulations is the duty of the courts and should not be left to the agency.
Put in those terms, the issue seems dry and technical, and it’s hard to see why it matters. But it is very important. The reason is that this problem of so-called “deference” is a big part of what keeps the government in the one-way upward growth ratchet.
I have a post all the way back in March 2017 that defines this bet”Chevron deference game”. On the occasion of the post there is that Neil Gorsuch has been nominated to the Supreme Court by the newly elected President Trump, and in some decisions that Gorsuch has written as a judge of the court of appeals he has staked out a critical position of this respect. In one case, Gorsuch has written that “Chevron appears to be nothing less than a judge-made doctrine to abdicate judicial duties. Gorsuch’s position on this subject is problematic in confirmation. However, he was confirmed, and sat down in April 2017.
My post reframes the question not in terms of “deference,” but in terms of how judicial hijacking allows governments to grow unchecked:
“Chevron deference” is the ultimate unfettering of the government to enable it to expand as much as it wants, and not to stop. Of course every agency’s interpretation of the statute or regulation will be in a way to give the agency itself more power! For Exhibit A, see the EPA under Obama, who has interpreted the term “water of the United States” to cover every puddle and rain spot (to claim jurisdiction over half of all private land) and has determined that the colorless, odorless gas (CO2) as a “danger to human health and well-being” (to claim jurisdiction over the entire energy sector of the economy).
Bright Loper it is explicit Chevron they are being defeated. Chief Justice Roberts authored the majority opinion. The basis for the decision is quite narrow, especially since the Administrative Procedure Act of 1946 provides that when a regulation is challenged, the court will decide. “all relevant questions of law.” Justices Thomas and Gorsuch, separately, shared a broader rationale Chevron deference was fundamentally wrong. Thomas notes that such respect is in conflict with the separation of powers, and the courts’ basic function of interpreting the law. Gorsuch argued that the court did not have to favor either party in previous cases, but that the Chevron rule fundamentally changed that rule in favor of the government.
Will overruling from Chevron bring significant changes in the dynamics of endless government growth? I think so, but maybe not right away. Remember that Bright Loper now we are nearing the end of Biden’s term, where it is likely that he will prefer to return from a Republican administration in 2025. Such a new administration will very much look for large-scale regulation of the recently published regulations, in particular. in the area of ​​climate and energy. At Chevron the doctrine has been useful to agencies in regulatory roll-backs as well as expansions. Obviously, the number of retreats is less than the expansion of the past decades. But the truth is Chevron The case arose in the context of a regulatory overhaul by the EPA during the Reagan administration, which was again blocked by the DC Circuit. The D.C. Circuit is currently dominated by judges appointed by Biden and Obama, who can be expected to reject the Trump administration’s recent regulatory rollback.
So this process will take years to play out. But overall, my view is that the end of Chevron is good news for those who reject the growth of government.
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