Undoing a “Constitutional Revolution”

Undoing a “Constitutional Revolution” January 23, 2024

The Supreme Court has just heard a case that might undo what has been called a “constitutional revolution.”

Forty years ago, in 1984, the Supreme Court issued a ruling called the “Chevron deference.”  In the case Chevron U.S.A. v. National Resources Defense Council, the court ruled that when laws are vague or ambiguous, federal agencies may decide how to apply them.  And that, in the words of the opinion written by Justice John Paul Stephens, “agenc[ies] may . . . properly rely upon the incumbent administration’s views of wise policy” Furthermore, courts should defer to the expertise of those agencies and not overrule their decisions.

The result has been a dramatic empowering of the federal bureaucracy.

According to Peter Wallison, a White House counsel under Ronald Reagan, the Chevron deference is “the single most important reason the administrative state has continued to grow out of control.”

Legal scholar Gary Lawson called it “nothing less than a bloodless constitutional revolution.”  This is because agencies of the Executive Branch can now issue regulations that have the force of law.  Even though the Constitution invests lawmaking powers solely in the Legislative Branch.  And whereas the Judicial Branch can overturn laws passed by the legislature, it “defers” to the equivalent laws imposed by the Executive Branch.

Making it worse, the Legislative and Judicial branches are fine with that.  In the words of a Wall Street Journal editorial [behind a paywall], “It’s not too much to say Chevron has corrupted all three branches of government. It lets Congress abdicate its duty to write clear laws, the bureaucracy to grab more power, and the courts to abandon their normal method of judicial review.”

The editorial adds, “Time for the High Court to restore constitutional equilibrium.”  That time may have come.

The court has heard arguments in two related cases, Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce, in which two small New England fishing companies brought suit against its regulators.

The fishermen had to have monitors on their boats to make sure they were following all of the regulations.  They also had to pay the monitors, a sum that came to $780 per day, plus their food.  “I can’t even afford sometimes to pay my crew $780 a day,” complained one Maine fisherman, “but we’re paying monitors.”

Compounding the problem is that these monitors are typically not trained and experienced sailors, and yet working on a fishing boat is one of the most dangerous jobs in the world.  “These guys are the ones that are fresh out of college,” said one skipper. “They got a couple of weeks of training online, and then they were brought out to sea with me, where I was responsible for keeping their safety.”  Once his boat was nearly blown on its side during a storm and he was on the verge of ordering his crew to abandon ship.  He would have had “to go down into the vessel to go after a child who’s having a panic attack.”

A story about the plight of the fishermen tells about the effects of this kind of over regulation.  From 70-85% of the seafood Americans consume is imported.  The article quotes some of the fishermen:

“It’s ridiculous that Icelandic fishermen can be off the coast of Iceland catching fish and then it goes on an airplane, lands in Boston, and becomes the fish and chips special at your local restaurant, when there’s perfectly good fish from the United States caught locally,” Odlin said. . . .

“The New England fishermen are the most regulated fishermen in the world, but you, the U.S. consumer, are buying product from nations that do not abide by those regulations,” Leeman said. “We’re getting killed for the sake of going green, but nobody else is.”

It isn’t that the fishermen are opposed to all regulation.  They just want it to be sensible, and they want to be involved:

Odlin said fishermen know best how to regulate the industry — and have a major interest in doing so.

“The last thing a fisherman wants to do is run out of fish,” Odlin said. “We want fish forever for our kids, for us.”

In the oral arguments, the justices seemed to be sympathetic to the fishermen and seemed open to the idea of overturning the Chevron deference, though others indicated a desire to preserve it, which is the position favored by the Biden administration. Some of the justices have previously spoken against it.  So there is a good chance Chevron will be overturned, though we probably won’t know the decision until the summer.

If it is, our three branches of government will suddenly have to start doing their jobs.


Illustration:  AI image generated by rawpixel, royalty free

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