Not Tired of Winning Yet CLXIX

The Supreme Court this very day in the case of Loper Bright Enterprises v. Raimondo, 603 U.S. ___ (2024) together with a companion case, Relentless, Inc. v. Department of Commerce, rescinded the nigh unbridled power of the Administrative State to interpret their own laws for themselves, called the Chevron doctrine.

The Loper and Relentless ruling today held that The Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority. The courts may not defer to an agency interpretation of the law simply because a statute is silent or ambiguous; Chevron is overruled.

Justice Neil Gorsuch in the concurring opinion writes “…today, the Court places a tombstone on Chevron no one can miss. In doing so, the Court returns judges to interpretative rules that have guided federal courts since the Nation’s founding.”

This ruling is a significant and far-reaching as the Dobbs v. Jackson Women’s Health Organization (2022) overruling Roe v. Wade (1973).

The case being overruled is Chevron v. Natural Resources Defense Council, (467 U.S. 837, 104 S. Ct. 2778 (1984)) which established the Chevron doctrine. At first Chevron was a minor case, but, as with Roe v Wade,  successive layers of reinterpretation expanded its meaning far beyond the original holding, and made it the single most cited case in administrative law.

The Chevron doctrine held that if Congress has not directly said otherwise in the authorizing statue, a court must defer the agency’s own interpretation of the statute authorizing the agency, provided it was reasonable. In other words, Federal Agencies merely decided for themselves what their own powers were, and what they were authorized to do.

Vacated and remanded, 6-2, in an opinion by Chief Justice Roberts on June 28, 2024. Justices Thomas and Gorsuch concurred. Justice Kagan filed a dissenting opinion, in which Justice Sotomayor joined. Justice Jackson recused herself. However, Jackson joined the dissent in the Relentless case.

The case here was Loper Bright Enterprises v. Raimondo. The plaintiffs,  fishermen, sued Commerce Secretary Gina Raimondo, who runs the National Marine Fisheries Service.

Outrageously, the National Marine Fisheries Service claimed the authority to coerce fishermen to “pay the salaries of the federal inspectors that federal law forces them to carry aboard their boats,” when there was no law that the National Marine Fisheries Service could cite giving them the right to do so.

The National Fisheries Service cited the Chevron decision, saying that the law’s silence gave the agency a right to interpret or make law as it saw fit, ergo the inspectors’ salaries ought to be paid by fishermen. Congress had not, after all, made a rule saying the fisherman did not have to pay the inspector’s salaries. And the constitutional provision giving Congress the power over government funding was nullified by a bureaucracy deciding it did not apply to itself.

To the contrary, the majority held that the Chevron doctrine of deference conflicts with the Administrative Procedure Act (APA); specifically, that Chevron defied the APA’s requirement that courts reviewing agency actions should “decide all relevant questions of law” and “interpret constitutional and statutory provisions.” This means courts may not defer to an agency’s interpretation of the law simply because a statute is silent or ambiguous.

The majority read, in part:

Chevron has proved to be fundamentally misguided. Despite reshaping judicial review of agency action, neither it nor any case of ours applying it grappled with the APA—the statute that lays out how such review works. Its flaws were nonetheless apparent from the start, prompting this Court to revise its foundations and continually limit its application. It has launched and sustained a cottage industry of scholars attempting to decipher its basis and meaning. And Members of this Court have long questioned its premises. [cites omitted]. Even Justice Scalia, an early champion of Chevron, came to seriously doubt whether it could be reconciled with the APA. [cite omitted]. For its entire existence, Chevron has been a “rule in search of a justification,” Knick, 588 U. S., at 204, if it was ever coherent enough to be called a rule at all. [emphasis added]

The dissent argued agencies are better suited that courts of law to determine what ambiguities in a federal law, since the questions may involve technical or scientific questions that fall within an agency’s area of expertise. It is one of the most clear expressions of the craving for rule by self-appointed experts which characterizes the core of Twentieth Century New Deal political philosophy: we can call it the doctrine of the Brain Trust.

The majority pointed out in rebuttal that the court may ask the advice and opinion of friends of the court, or hear the testimony of experts, just as it does in all cases and controversies within its purview.

The majority moreover held that the Chevron doctrine “allows agencies to change course even when Congress has given them no power to do so.”

Justice Clarence Thomas penned a brief concurrence holding that the Chevron doctrine was inconsistent not only with the Administrative Procedure Act but also with the Constitution’s division of power among the three branches of government.

This man is a national treasure. May God prosper him.

Kagan in her dissent argues that technical matters must be left to bureaucrats, because they are smarter than judges. Agencies are more likely to have the technical and scientific expertise to make such decisions.

She argues in favor of Stare Decisis, emphasizing the long history of the Chevron doctrine. In her words: “It has been applied in thousands of judicial decisions. It has become part of the warp and woof of modern government, supporting regulatory efforts of all kinds — to name a few, keeping air and water clean, food and drugs safe, and financial markets honest.”

To the contrary, in his majority concurrence, Justice Neil Gorsuch writes “… all today’s decision means is that, going forward, federal courts will do exactly as this Court has since 2016, exactly as it did before the mid-1980s, and exactly as it had done since the founding: resolve cases and controversies without any systemic bias in the government’s favor.”

In other words, Kagan is arguing that a doctrine dating from the long-ago dreamtime of 1980, time immemorial, merits deference due to its longstanding and intimate growth into the fabric of the legal system. But by that logic, the constitutional principles mentioned by Thomas are older, reaching back to the founding, and to eternal principles of law and justice first articulated by Montesquieu.

More to the point, the question of whether a case has become part of the warp and woof of of modern government is less poignant that the question of whether of modern government has been warped by it.

The Administrative State has not exactly covered itself in glory in their attempts to clean the environment by creating a permanent Luddite industry-killing earth-worshipping deathcult,  to serve public health during the China Virus pandemic by killing the elderly and mandating deadly injections, or to keep the financial system honest and free from fraud by such parties as Enron, Fannie Mae, or Sam Bankman-Fried, not to mention the entire nation of Ukraine.

Deference to the permanent Bureaucracy might not be so risible had not the Bureaucrats themselves not devolved from merely over-expensive, counter-productive, and ultra-incompetent to lower, darker realms of mass-deception, mass-expropriation, and mass-murder.

By overruling the Chevron doctrine, Kagan concluded, the court has created a “jolt to the legal system.”

It is to laugh. May God prosper many more such jolts.

Time makes fools of all men: conservatives, in order to conserve long-standing and time-tested precedent, become agents of progress; and progressives, in order to serve the eternal regression to ever more barbaric forms of tribal law and brutality, become agents of stagnation.

Acute observers of the judiciary anticipated such a ruling, as Kavanaugh has in times past written opinions critical of the Chevron doctrine this case overrules. Another ovation of gratitude is owed to Donald Trump for backing the appointments of originalist and constitutional justices.

The Judicial Branch just reclaimed a major section of sovereignty from the unelected and unanswerable arm of the Executive, the so-called Fourth Branch of government, that is, the permanent bureaucracy. A massive step forward has been taken to allow the republic once again live in a system of checks and balances, not the rule of self-appointed Mandarins.

Rejoice, patriots!

Allow me to close with a quote from Chesterton

“All conservatism is based upon the idea that if you leave things alone you leave them as they are. But you do not. If you leave a thing alone you leave it to a torrent of change. If you leave a white post alone it will soon be a black post. If you particularly want it to be white you must be always painting it again; that is, you must be always having a revolution. Briefly, if you want the old white post you must have a new white post.”

— ORTHODOXY by G K Chesterton (1908)