Bialosky: The Potential End of the Administrative (Deep) State

We now have the permission of the Supreme Court to end the abuses of the government agencies.  Without legislative approval, these agencies have been making rules, fining businesses and restricting business growth.

“That is exactly what the EPA, FDA, National Labor Relations Board, and a multitude of other agencies have done over the years. The expansion of the Senior Executive Service formed in 1979 put people at the top of these agencies who could neither be fired nor told what to do. They began to think they were running the government not Congress or the appointees of the president.

The position taken by the publication Government Executive (a federal employee newsletter) says it all. Written by Eric Katz it states, “The court overturned a precedent it set in the 1984 case Chevron v. National Resources Defense Council, which says broadly that courts must defer to agencies when interpreting ambiguous statutory language. Under the ‘Chevron deference,’ courts have previously held they and Congress do not possess the same expertise as federal agencies and therefore executive branch experts should have latitude in interpreting laws. If the law is ambiguous, courts must defer to agencies so long as their interpretations are reasonable.”

“Reasonable” is not legal or legislative.  With the protection of the Biden Administration, the agencies are doing what Congress has not approved.

The Potential End of the Administrative (Deep) State

Posted by Bruce Bialosky, Flashreport,  7/14/24    https://www.flashreport.org/blog/2024/07/14/a-knife-in-the-heart-of-the-administrative-deep-state/

Preamble: Our country suffered a traumatic event yesterday. I caution anyone from attributing political motive to this. The people who do these things hate us all, Democrat, Republican or any other American. They hate America regardless of what is dug up that they did or said. The best part of this is that person is no longer with us. The other best part is our wonderful law enforcement at all levels who risk their lives for us every day. God bless them and God bless our country.

Right up there with Dred Scott v. Sanford and Plessy v. Ferguson, Chevron v. Natural Resources Defense Council was among the very worst rulings ever made by the U.S. Supreme Court. It was the law of the land for forty years. It turned the Administrative State with its unelected bureaucrats into our overlords. Loper Bright v. Enterprises came before the current Supreme Court, and they restored the U.S. Constitution to its rightful place as the law of the land.

How did Chevron, which was not an earth-shattering decision in 1984, become such a consequential case? It told judges that instead of making their own interpretation of a law they should instead rely on administrators at federal agencies and departments. As the rules of life apply, the people working at these agencies became bolder and bolder in their interpretations of Congressional laws and found more loopholes that fit with their analyses. So much so that it became known as the “Chevron Doctrine” and not just the “Chevron Deference.” They knew Congress was not rewriting their ambiguous laws and the courts had to defer to their interpretations, might they not be tempted to make changes that they “feel” are best?

That is exactly what the EPA, FDA, National Labor Relations Board, and a multitude of other agencies have done over the years. The expansion of the Senior Executive Service formed in 1979 put people at the top of these agencies who could neither be fired nor told what to do. They began to think they were running the government not Congress or the appointees of the president.

The position taken by the publication Government Executive (a federal employee newsletter) says it all. Written by Eric Katz it states, “The court overturned a precedent it set in the 1984 case Chevron v. National Resources Defense Council, which says broadly that courts must defer to agencies when interpreting ambiguous statutory language. Under the ‘Chevron deference,’ courts have previously held they and Congress do not possess the same expertise as federal agencies and therefore executive branch experts should have latitude in interpreting laws. If the law is ambiguous, courts must defer to agencies so long as their interpretations are reasonable.”

The questions became what is “reasonable” and are they really experts? Aspects of many laws were stretched to the limits by career bureaucrats (experts) combined with friendly political appointees. They announced these changes and basically said to us poor slobs that these rulings applied to us and if we did not like it to sue the government. If you had enough gumption (and money) to take on the federal government, you would end up in a lower court that would just assert Chevron was the rule of the day. Then the poor slob would have to appeal (more money) and hope the next level saw the light of day. This is why the EPA tried to tell everyone they had control over every source of water in our country, even ponds on private property.

Associate Justice Elena Kagan is emblematic of the misguided thinking on this matter. In her dissent she wrote, “the majority turns itself into the country’s administrative czar.” She added that they replace “judicial humility” with “judicial hubris.” She is so wrong here. First, even a lay person like me knows the preeminence of the court to review laws was established by Chief Justice John Marshall in 1803’s Marbury v. Madison. Why the Burger court willingly waived its right to interpret Congressionally passed laws 181 years later is beyond me. Different times, different thinking.

The other point of the ruling in Lopes is not for the judges to assert their muscle. They are telling Congress, as they have been since the conservative majority took hold, do your job. If you want all waterways controlled by the EPA then write it into a law, pass it, and get the President to sign it. Congress of recent has been hiding behind Chevron and allowing these unelected potentates to tell us what needs to be done. Chevron is gone. Congressional law is back in fashion.

Chief Justice Roberts wrote, “Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority.” There is nothing to stop the people at the agency from going to Congress and asking for a change in the law. If they are the “experts” that some people tout them to be, why would Congress not adhere to their wishes?

In an adjacent case, the high court stopped the Securities and Exchange Commission (SEC) from being judge, jury, and executioner. In SEC v. Jarkesy, the court put a stop to the SEC trying cases in front of their own tribunals where they almost universally win. The Justices determined that “in suits at common law, the right of trial by jury shall be preserved.” In the state of California, in agencies like the Employment Development Department (EDD) and California Department of Tax and Fee Administration (CDTFA), there are these in-house tribunals that favor the agency. I am sure there are similar ones in other states. Based on this ruling they should all be disbanded along with those at other federal agencies.

They lied to us about the laptop, about Russian collusion, about cheap fakes; and they lied to us about the deep state. Whether you call it the “deep state” or the “administrative state,” it exists. Chevron did not create it but enabled it and nurtured it.

It took forty years to create this mess, and it will take a while to turn matters around. Congress might have to write shorter, more cogent bills or clean them up before passing. The courts will say to governmental entities stretching the law, “You must go to Congress if you want that done.” You know, the way our Constitution dictates. We are a good bit freer now.