By Guest Columnist Kyle Wingfield
If Chevron itself sounds arcane, know that it has unleashed unelected bureaucrats to wield legislative powers never intended for them.
When the courts must settle a conflict between regulators (government agencies) and the regulated (citizens and businesses), common sense tells us there should be an equal playing field. Unfortunately, that hasn’t been the case in this country for decades. Instead, our justice system has deferred to the regulatory agencies themselves when disputes arise, resulting in a very tilted scale of justice.
Fortunately for those of us who believe in limiting the powers of government, the U.S. Supreme Court recently stepped in to restore checks and balances. As he often does, our friend Kyle Wingfield of the Georgia Public Policy Foundation has done an excellent job of explaining why the concept of agency deference is such an important one. We’ll let Kyle take it from here:
It’s fitting that the U.S. Supreme Court released a highly anticipated opinion on the separation of powers just before this Independence Day.
On its face, Loper Bright Enterprises v. Raimondo concerns an esoteric dispute about whether a federal agency may levy a particular fee on fishing vessels. But the case was also an opportune time for the high court to take the final step toward overturning a precedent known as the “Chevron doctrine.” Since 1984, courts have deferred to executive agencies’ interpretations of the law when a statute was “silent or ambiguous with respect to the specific issue” so long as that interpretation was “permissible.”
If Chevron itself sounds arcane, know that it has unleashed unelected bureaucrats to wield legislative powers never intended for them. Chevron’s price can be counted not only in the billions of dollars of excessive regulations and fees heaped upon industry, but in the gradual erosion of the Constitution’s separation of powers.
Yet, as Chief Justice John Roberts wrote for a six-member majority, “the Constitution assigns to the Federal Judiciary the responsibility and power to adjudicate ‘Cases’ and ‘Controversies’ – concrete disputes with consequences for the parties involved. … When the meaning of a statute was at issue, the judicial role was to ‘interpret the act of Congress, in order to ascertain the rights of the parties.’”
For four decades, the judiciary has ceded that important power to executive agencies. Reasserting the court’s preeminence in interpreting the law is a key step toward more constitutional balance with the executive branch, which is merely meant to carry out laws.
Another key step rests with Congress, where legislative power belongs. Unfortunately, it has ceded power as well. Sometimes it passes laws that simply direct agency heads to make policy; the Affordable Care Act famously included more than a thousand such directives. Other times, Congress chooses not to act at all, knowing agencies will step in and do … something.
The Founders imagined those holding power would want to exercise it. They built checks and balances to ensure power was exercised appropriately and accountably. Instead, many of their political descendants find it more expedient to pass the buck and focus on petty squabbles that bring media exposure and campaign dollars.
The machine is out of order. Returning it to its original design is vital. This Fourth of July, we can thank a majority of Supreme Court justices for doing their part to fix it.
Excerpts from Mr. Wingfield’s article are republished with the author’s permission.
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