If you remember civics class (if you were even required to take one), you might recall that the federal government consists of three independent branches: legislative, executive, and judicial.
Yet, over time, a lot of that “checks and balances stuff” was pooh poohed: Lazy legislators could pass half-baked laws that executive branch agency (e.g., HHS) employees would then (often wildly) interpret the statute via regulations. The judicial branch could escape a good deal of judging because the same agency (e.g., HHS) would employ faux “judges” to decide if their own rules complied with the law and whether you violated their own rules; and if you did, they could assess civil penalties (i.e., multimillion dollar “don’t-call-them-fines”) and bar you from doing any more business with the government (e.g., no more Medicare participation for you or anyone who employs/subcontracts with you).
And, to make matters worse, the 1984 Supreme Court decision in the case known as Chevron v. Natural Resources Defense Council established the precedent that became known as the “Chevron doctrine”: If Congress has not directly addressed the question at the center of a dispute, a court was required to uphold a federal agency’s interpretation of the statute as long as it was reasonable. In other words, if you appealed an agency’s own interpretation or administrative law ruling, you were highly likely to lose because the court was required, absent a finding of unreasonableness, to defer to the agency. No true day in court for you!
Then, in June 2024, in a decision addressing the Chevron doctrine question in two cases, Relentless v. Department of Commerce and Loper Bright Enterprises v. Raimondo, the Supreme Court tossed out the doctrine. Agency interpretations of statutes, like agency interpretations of the Constitution, are not entitled to deference. Judges will now “decide legal questions by applying their own judgment”.
You’d think there’d be far and wide celebration over freedom from the yoke of administrative tyranny, but it turns out that more than a few don’t want to be free – they prefer the prisoner mentality that values the “certainty” of 40 years of faux decision-making (i.e., Chevron deference).
From the Washington Post: “Recent Supreme Court decisions curbing the power of federal agencies will hobble government efforts to protect public health, legal experts warn. The rulings will make it harder for some federal agencies to bring enforcement actions, give judges more leeway to second-guess agency decisions and . . . make it easier to challenge long-settled regulations.”
Huh?
The entire point of separation of powers with independent and balancing branches is for Congress to pass laws, for the executive branch to enforce them, and for the judiciary to interpret the application of the law and determine constitutional muster.
Sure, it would be technocratically more efficient for Congress to pass a law vaguely prohibiting something and then leave it to executive branch bureaucrats to adopt thousands of pages of regulations with the force of law to fill-out and interpret Congressional intent and then, in the guise of administrative law “judges”, further interpret the regulations and determine your compliance with them.
From the viewpoint of the anointed, the fact that we have an independent judiciary makes it harder for them to “protect our democracy”.
It’s true that many regulations and many court rulings based on Chevron deference will be challenged and potentially invalidated. But what’s better, a fairer playing field or one that we could depend on even though we knew it was fixed?
