About forty years ago, the Natural Resources Defense Council, one of the most odious organizations in the enviro-Nazi coalition, received a huge gift from the Supreme Court. However, the case that granted that gift awarded an even bigger gift to the regulatory bureaucracies. That gift has since become known as Chevron deference: the requirement that the courts defer to the regulatory agencies whenever there’s even a smidgen of ambiguity in the relevant enabling statute. That doctrine has allowed regulators to exploit near-invisible, often absurd interpretations of statute law to run roughshod over Americans’ rights in various areas. As I’m a gun nut, I’m particularly sensitive to how the Bureau of Alcohol, Firearms, Tobacco, and Explosives has used Chevron deference to undermine the right to keep and bear arms.
The government shows up at your business and demands you pay the salaries of the regulators who lord over you. If you refuse, you’ll be ruined. You have little recourse. You’ve never even voted on the policy because no law implementing it exists. Bureaucrats in D.C. cooked up the idea, and a political appointee signed off on it.
That’s what Loper Bright Enterprises v. Raimondo, a case brought by New England fishermen against Commerce Secretary Gina Raimondo, is all about. It may finally end or weaken Chevron deference, which refers to a 1984 decision that inadvertently empowered the administrative state to take wide-ranging, illiberal powers over American economic life.
I mean, the case of the fishermen is basically a modern reenactment of “taxation without representation.”
Yet when the Supreme Court took up oral arguments in Raimondo, the three leftist judges didn’t focus on the constitutionality of Chevron deference, but rather lamented the alleged problems of stripping government experts of their power. Here is how The Washington Post’s Ruth Marcus frames the arguments: “Who decides? From the liberal point of view: unelected judges or regulators with expertise and accountability? From the conservative vantage point: judges constitutionally empowered to say what the law is or unelected bureaucrats?”
Yes, it’s laughable that anyone could characterize “regulators” as being accountable. Much of the point of the regulatory bureaucracies is to insulate “government experts” from accountability. But blithely attributing “expertise” to these faceless creatures is just as laughable.
The fight at the Supreme Court will likely be fought over this matter of “expertise.” But the issue that should dominate the discussion is really whether a law that supports varying interpretations is Constitutional. If you thought that was a settled question, surprise!
With six “conservative” justices on SCOTUS, you’d think the case would likely be decided for the fishermen, and I do expect that. However, the larger question of whether a vague law that empowers a bureaucracy is Constitutional is likely to be shoved aside. That is, the opinion will be written so narrowly that only Loper Bright Enterprises and its colleagues in the fishing industry will be relieved by it. That would be a tragedy, both for Constitutional law and for the millions of American enterprises that are overburdened by regulation and regulatory expenses.
This is a case to watch. Chief Justice John Roberts has not been a reliable vote for Constitutional supremacy. His authority and influence over the Court may determine the direction and power of the ultimate opinion. That was often the case during the Warren Burger years, when Chief Justice Burger repeatedly arranged for conservative opinions to be written by the Justice least in favor of the decision.
We shall see.