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Supreme Court Confronts Anti-Democratic Administrative State

Posted on Friday, January 26, 2024
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by Outside Contributor
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Increasingly alarmed by Joe Biden’s record-low presidential approval ratings that somehow continue to deteriorate – this week brought more bad news with an ABC News poll showing him at just 33% – his electoral salvage team possesses few viable strategies beyond slurring former president Donald Trump as some sort of existential threat to democracy itself.  

That’s a rich Orwellian accusation coming from a party that ruthlessly works to prevent third-party No Labels candidates from appearing on presidential ballots this November, and to quash the primary challenge of fellow Democrat Congressman Dean Phillips.  

The strategy acquires additional irony on a week when federal prosecutors sought a five-year prison sentence against anti-Trump activist Charles Littlejohn, who joined the Internal Revenue Service (IRS) in 2017 for the sole purpose of accessing and leaking the private tax records of Trump himself.  

Deepening the irony, a United States Supreme Court shaped significantly by Trump heard two cases this week that may actually restore a more democratic balance to our system of governance by reclaiming powers from the unaccountable regulatory state.  

At issue this term in the companion cases of Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises, Inc. v. Raimondo is a judicial creation known as “Chevron Deference.” 

Arising from its namesake 1984 Supreme Court decision in Chevron v. Natural Resources Defense Council, “Chevron Deference” refers to the wide deference granted to administrative agencies in cases where the text of a law in question is silent or arguably ambiguous.  As an initial matter, that violates citizens’ due process rights by automatically tipping the judicial scales in favor of the government and against the citizen challenging the agency, when our system of justice demands that cases be resolved in a neutral forum by impartial judges.  

More broadly, “Chevron Deference” undermines democratic principles by allowing unelected and unaccountable bureaucrats at federal agencies to effectively create and interpret laws, as opposed to executing laws as our constitutional system requires.  Granting such wide latitude shifts lawmaking authority from Congress, and it shifts interpretive powers away from courts.  

“Chevron Deference” thus violates the Constitution’s separation of powers, which grants “judicial power” to courts and envisions a judiciary that serves as a check on potentially abusive executive branch actions instead of simply deferring to them.  As settled by Marbury v. Madison in 1803, “It is emphatically the province and duty of the judicial department to say what the law is.”  “Chevron Deference” undermines that core judicial responsibility.  

It also violates the Administrative Procedure Act of 1946 itself, which demands that, “the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning and applicability of the terms of an agency action.”  

Moreover, “Chevron Deference” created a democratic accountability problem, since murky agencies became more free to expand statutes to create new rules and regulations without the type of scrutiny, debate and oversight that the legislative process allows.  Whom can the American electorate expel from office when agencies abuse their authority and get things wrong?  

Whatever logic “Chevron Deference” possessed in 1984, the ensuing four decades have demonstrated that our federal bureaucracies are populated more by arrogant activists than benevolent technocrats.  As Chief Justice John Roberts has observed, the “Framers could hardly have envisioned today’s ‘vast and varied federal bureaucracy’ and the authority administrative agencies now hold over our economic, social, and political activities.”  

In that vein, it’s no coincidence that according to the U.S. Census Bureau, the two wealthiest counties in America, and six of the top ten, surround the Washington, D.C. area.  We are increasingly a nation run top-down by arrogant bureaucrats rewarded by stratospherically high-paying jobs immune from layoff or termination for poor performance.  They govern our lives from on high, immune from democratic checks and balances.  

That is the epitome of anti-democratic.  

“Chevron Deference” concentrates power in increasingly powerful and expansive administrative agencies, bypassing elected representatives and eroding the Constitution’s system of checks and balances and separation of powers.  By correcting its 1984 error, the Supreme Court can help restore the democratic principles that Biden and so many other critics claim to value. 

Timothy H. Lee is Senior Vice President of legal and public affairs at the Center for Individual Freedom.

Reprinted with Permission from CFIF.org – By Timothy H. Lee

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Roger
Roger
5 months ago

Republican congressman need to band together, instead of fussing with each other, and fight for America and a true democracy!!! Get rid of these leftist bureaucrats NOW !!!

American Farmer
American Farmer
5 months ago

It’s amazing to see how deep the cesspool is in our government. These brainwashed people run our society the way they see fit without any accountability or common sense. If they had to follow their own rules they would have been out of business before they could even get started.

Charles
Charles
5 months ago

The job of the judicial isn’t to make laws, and therefore, it should not matter which political party a judge affiliates themselves with. However, our judiciary have sought to make additional laws outside the legislature that align with the views of their political party. Hence, we have misinterpretation of the constitution. A careful look at what our founders wrote in the constitution should be quite plain to see. Take for example the “separation of church and state” no where in the constitution will you find this phrase. The amendment which this law as put forth from the Supreme Court says “the government (state) shall make no laws affecting the establishment of religion (church) or the free exercise there of. So here they sought to prevent the government from establishing a national religion to which all citizens must belong as it was in England with the church of england. We need to take away the power of bureaucrats and give that power back to the people where it belongs. End the lifetime politicians by giving each branch only 2 terms and then you’re done. From local governments to the federal government. The reason the president is only allowed 2 terms is because Congress said to much power corrupts they refused to impose the same restrictions on themselves and we the people let them get away with it.

Thinking American
Thinking American
5 months ago

Yes, both Congress and the Courts have been negligent in their duties by referring these decisions to the Administrative State (aka the Deep State).
With today’s obvious threat to the Deep State, our Administration is deferring to the WEF to advance the Marxist agenda. THANKS OBUMMER! (NOT!!!)

Robert Zuccaro
Robert Zuccaro
5 months ago

Who are these people 33% who actually approve of Bidens job? And they say WE’RE “Trump fanatics”? Funny!

Diane
Diane
5 months ago

Awesome article!

GTPatriot
GTPatriot
5 months ago

yes excellent required reading

anna hubert
anna hubert
5 months ago

Oligarchs who have every department of government not in their hand but in their pocket run this country have a firm grip on it and make no bones about it

Larry Nuckels
Larry Nuckels
5 months ago

Great article

David Millikan
David Millikan
5 months ago

Excellent article.

Gabe Hanzeli kent wa
Gabe Hanzeli kent wa
5 months ago

I hope the supreme court has the guts to take away as much power as possible for all local, state, and federal governemnt agencies. I hope the supreme court requires all current regulations to be cancelled and the documents containing them erased. then require each regulation, fee, fine or ordinance to be voted on by congress.

I also hope that the supreme tells Colorado that not only can they not kick candidates off the ballot they can not allow anyone except the party the candidate is part of write the descriptions of candidates.

Finally i want the supreme court to tell Colorado it is illegal to outlaw election audits.

Randy
Randy
5 months ago

The constitution is the “RULE BOOK” our country is suppose to be run by, it has gotten to be a retirement operation needing replaced. TERM LIMITS even limited employment by staffers would correct the “WRONGS” being on full display.

porterv
porterv
5 months ago

This article answers the question; “What ever became of America?”

Tim Toroian
Tim Toroian
5 months ago

A catalyst of revolution.

Pat R
Pat R
5 months ago

Chevron deference needs to be done away with. We need to get back to the original set-up of who makes laws, who interprets those laws in cases of suits brought to federal level, and remove any rule-making ability from the administration (rules they then enforces, all without Congressional say or oversight).

Deborah Wood
Deborah Wood
5 months ago

The Supreme Court has been writing rather than interpreting law for decades! ObamaCare, homosexual marriage, line-item veto, are examples of this.

Jim Johnson
Jim Johnson
5 months ago

The U.S. Supreme Court has spent every moment since John Marshall became chief justice to the present day promoting tyranny, oppression, subjugation, the end of individual liberty and the utter destruction of western values. Their rulings have helped create a government opposed to life, liberty and the pursuit of happiness and of honesty and integrity. They are apparently opposed to providing for the common defense and in favor of foreign invasion, said invasion to be paid for by the U. S. Taxpayer.
I expect any Supreme Court ruling to create more, not less, despotism. John Roberts, based on words in his rulings, believes that the people of the United States are government subjects, not free citizens The so-called liberals on the court seem to be of the same opinion. I expect that, given any option, the phrase “we the people” will be stricken from the Constitution as unconstitutional.

David
David
5 months ago

Right on! But is any one doing anything about it?

Don Wong
Don Wong
5 months ago

Society itself should wake up to the very dangerous turn rapidly taking place.America will no longer be.Falling to the will of a handful of communist leaning activists bent on destroying the American way of life,Its all disappearing before our eyes, Only if you open them

Sean Rickman
Sean Rickman
5 months ago

What I see here is that the democrats call the Supreme Court the law of the land only when they benefit from their decisions.Actually the constitution is the law of the land,drafted by people that were smarter,with more foresight and common sense than anyone alive today.There are some that may be close,but,not there yet.

A Voter
A Voter
5 months ago

At some point it will become necessary for “We The People” to rise up and put the government in check. Expecting the current elected officials to properly and fairly police themselves is never going to happen. Even the SCOTUS, which is supposed to have a conservative majority still has times when it refuses to do the correct thing. If the court had been wiling to look at hard evidence from the 2020 illegal selection of Biden as president, it would have seen a clear pattern of voter fraud and systematic manipulation of the process. In my own state of Georgia, both Brian Kemp and Brian Rathensberger, supposedly two conservatives, have vehemently stated that no voter fraud occurred, but for some reason they found it necessary to revamp the voter laws immediately AFTER THE 2020 ELECTION? So if nothing was wrong, why the change?
We are being duped by both sides and neither has a desire to do the right thing unless it benefits them personally.
But expecting “We The People” to rise to the occasion is no more probable than expecting the government to fairly and properly police itself.

Garyk
Garyk
5 months ago

This court must follow the Constitution and laws of Our Country and restrict these bureaucracies and the arrogant, unchecked, career DC swamp creatures from overstepping their authority.
This over bloated ,overpaid waste must be neutered and reduced for government to operate properly.
Currently we have a bunch of zealots, self appreciative, arrogant, politicized and unaccountable lifetime employees in Washington.
Is it any surprise that EVERY governmental agency is a failure????
The courts must restore balance, the legislature must radically reduce or eliminate every agency.
Local,state and federal governments are WAY too large and WASTEFUL!

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