The administrative state has suffered a fatal blow – The Mercury

Jerry Shenk

In a recent opinion known as the “Chevron decision,” the U.S. Supreme Court finally put an end to forty years of extraconstitutional abuses of the American administrative state. Federal bureaucrats can no longer define their own powers.

A prescient column in March titled “The Administrative State Faces a Reckoning” described how unelected executive branch bureaucrats impose often unnecessary and even frivolous regulations on American citizens, businesses, and ultimately consumers.

The article acknowledges that “senseful regulation can — and often does — protect consumers, investors, workers, and the environment — and Americans should follow the rules. But first, binding rules should make sense — and, above all, be constitutional.”

The presumed authority of federal bureaucrats to issue binding regulations was based on a “principle” known as “Chevron deference,” which, according to Ballotpedia, “derives its name from the 1984 U.S. Supreme Court case Chevron USA Inc. v. Natural Resources Defense Council Inc., which involved a divergence in the Environmental Protection Agency’s interpretation of an enabling provision of the 1977 Clean Air Act. That case established a two-step review approach that courts use to analyze agency interpretations of the law. In the review process, courts consider (1) the clear intent of Congress in enacting the law and (2) (if the court finds ambiguity in the law) whether the agency’s rule was reasonably interpreted and not arbitrary, capricious, or clearly inconsistent with the statute.”

In other words, for four decades, Chevron’s compliance effectively allowed federal agencies to exercise their own authority to impose binding “details” when the regulations were not entirely clear.

Yet “clarity” is rare in federal legislation. This may be intentional, since ambiguity spares elected representatives the arduous task of reading and understanding legislation, as well as the potential—often real—consequences of their votes.

As such, specificity can be reelection-threatening—and God forbid that privileged life members should have to work too hard or risk their careers for something as trivial as doing their job! Better to hand over the effort and detail to faceless, unelected, unaccountable bureaucrats who are eager to write regulations that “justify” their federal sinecures.

And — hoo boy! — were these feckless bureaucrats ever busy! Since 2021, Biden administration agencies have issued 46 regulations for every law passed by Congress.

Regulations can be — and often are — expensive.

According to the Competitive Enterprise Institute, “American households pay at least $14,000 in hidden regulatory costs each year. Rather than finding ways to reduce these costs… President Biden’s holistic policy framework for government policymaking prioritizes political issues like climate change and equity in the regulatory process.

“Federal environmental, health and safety, social, and economic regulations are crippling the economy, making it unnecessarily more difficult and expensive to run a household or business… (…)

“Many regulations have opportunity costs that are invisible and impossible to calculate. They can affect households directly or indirectly, for example when companies… pass on… regulatory costs to consumers, as they do with corporate taxation.”

But after the Chevron ruling, the agency’s supposed deference to regulation collapsed.

Requiescat in pace.

For more than four decades, every executive branch agency has exploited Chevron’s compliance, but the Department of Energy and the Environmental Protection Agency (EPA) have fared the worst.

For example, in 2022, the Environmental Protection Agency (EPA) announced new Clean Water Act “guidance” expanding court-approved federal jurisdiction over “navigable waters” to allow the EPA to decide the scope of its own jurisdiction and authority to impose binding regulations on any body of water of any size.

The EPA targeted “all waters of the United States” and all “activities affecting those waters”—that is, human activities on land in every watershed. Why is that alarming? Every acre of American land is in a watershed.

The court invalidated the EPA’s apparent power grab but squandered a golden opportunity to force Chevron into submission—until now.

The Biden administration has bypassed legislative authority to issue regulations, including those on overtime and student loan forgiveness, and environmental regulations, including restrictions on power plant emissions and tailpipes, that could be revoked if the executive’s extraconstitutional actions are legally challenged. These and many other orders could — should — be subject to review.

The Supreme Court’s “Chevron Decision” rightly prioritized the written law, judicial precedent, and the language of the Constitution over the appetite of any administration and/or unelected federal bureaucracy for power and control.

American consumers and taxpayers won, the Washington swamp lost, and Congress was reminded of its constitutional duties.

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Contact columnist Jerry Shenk at [email protected]