Chevron: The Supreme Court Created the Swamp – And Now Must Help Drain It

Seton Motley | Less Government |
Seton Motley | Less Government |
Thomas Needs Collegial Assistance
Pulling the Swamp Plug

In May of 2013, we wrote this:

Supreme Court Rules Bureaucrats Can Set Their Own Power Limits; No Bureaucrats Find Any

Followed up in September 2014 with this:

Video: When Bureaucrats Determine Their Own Limits – There Are No Limits

To what Court ruling were we repeatedly referring?

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.:

“Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. was a (1984) case in which the United States Supreme Court set forth the legal test for determining whether to grant deference to a government agency’s interpretation of a statute which it administers.

“Chevron is the Court’s clearest articulation of the doctrine of ‘administrative deference,’ to the point that the Court itself has used the phrase ‘Chevron deference’ in more recent cases.

“The doctrine consists of a two-part test applied by the court, when appropriate, that is highly deferential to government agencies: ‘whether the agency’s answer is based on a permissible construction [emphasis added] of the statute.’”

Get that word “doctrine” – ???  That’s the Judicial Branch – pretending to be the Legislative Branch.  Writing new law – rather than interpreting and enforcing it.

Our elected Congress didn’t create the “Chevron Doctrine” – unelected Supreme Court Justices did.

“Highly deferential to government agencies,” you say?  Indeed it was, has been – and is.

As utterly unsurprising as anything in the history of ever:

Allowing bureaucrats to set the limits to their power…resulted in no bureaucrat anywhere having any limits at all.

How wretchedly influential has Chevron been?:

“Chevron is one of the most important decisions in U.S. administrative law, and has been cited in thousands of cases since being issued in 1984….

“Chevron is probably the most frequently cited case in American administrative law….”

When you hear about the growth of the Administrative State, the Deep State, the Swamp – whatever you want to call it – we largely have the titanically awful Chevron ruling to thank.

That…and decades’ worth of feckless Congresses that incessantly did absolutely nothing post-Chevron to restore Constitutional order.  By insisting elected Congresses do their job – rather than unelected bureaucrats doing it for them.

And now – thirty-six years after the Court’s titanic assault on the Constitution – we have Associate Justice Clarence Thomas again signaling his desire to return to the scene of the crime.

A crime – in which Thomas did not participate.  He didn’t join the Court until 1991.

Thomas Dissent Latest Sign in Battle Over Chevron Deference:

“Justice Clarence Thomas offered the latest signal of his appetite to rein in the power of federal agencies, criticizing a long-standing legal principle that federal agencies commonly rely on to defend their regulatory decisions.

“Thomas’s lone dissent in Baldwin v. United States didn’t hold back in his criticism of the Chevron doctrine, which calls for courts to show deference to agencies if there is ambiguity about what Congress authorized and if the agency regulation reflects a reasonable interpretation.

“Thomas argued that the doctrine unconstitutionally transfers the judicial power to interpret laws over to federal agencies.”

Get that?  Chevron – is an anti-Constitution twofer.  It has allowed unelected bureaucrats to steal power that rightfully belongs to the Legislative AND Judicial Branches.

Thankfully, Thomas isn’t alone.  President Donald Trump-appointee Justice Neil Gorsuch has also expressed inordinate distress with the Chevron mess.

In City of Arlington, Tex. v. FCC, Gorsuch wrote:

“My disagreement with the Court is fundamental. It is also easily expressed: A court should not defer to an agency until the court decides, on its own, that the agency is entitled to deference….

“‘It is emphatically the province and duty of the judicial department to say what the law is.’ Marbury v. Madison (1803).

“The rise of the modern administrative state has not changed that duty. Indeed, the Administrative Procedure Act, governing judicial review of most agency action, instructs reviewing courts to decide ‘all relevant questions of law.’”

In fact, a rise of sanity – seems to be increasingly seeping into the Court:

“(Thomas’) criticism of Chevron continues a pattern of voiced skepticism from multiple justices toward aspects of executive rulemaking, said Kristin Hickman, a professor at the University of Minnesota Law School, who focuses on administrative law and tax issues.

“‘One of the things you’re seeing at the Supreme Court in general in the area of administrative law and separation of powers is some rethinking of longstanding doctrine in the face of contemporary administrative practices,’” she said.

Meaning: The bureaucracy has gotten SO crazy and drunk with power – unconstitutionally handed to them by the Court – Court members are finally starting to notice.

Unfortunately, we’re not all the way there yet….

“Thomas’s critique of Chevron wasn’t enough to convince his colleagues to take up the case of Howard and Karen Baldwin, petitioners in a tax refund case who wanted the court to revisit its 2005 opinion in National Cable & Telecommunications Ass’n v. Brand X Internet Services, which gave deference to agencies, rather than judges, in construction of statute.”

Did you get THAT?  “Deference to agencies, rather than judges, in construction of statute” – ???

NEITHER unelected agencies or unelected judges are supposed to construct statute.  Elected Congress – and only elected Congress – is.

Meanwhile, we are yet again left with no hope of reprieve from the awful sentence to which the Court sentenced us.

The bureaucracy grows, and grows, and grows – thanks to the Court’s awful Chevron ruling.

And the Court has yet again decided to do…absolutely nothing about it.

It’s only been thirty-six years of extreme awfulness – foisted upon us by them.

Why would they rush to correct their egregious error?

This first appeared in Red State.