Justice John Paul Stevens, the author of the Court’s opinion in Chevron
This June, the Supreme Court struck a major blow to the bureaucratic behemoth of the administrative state by overturning Chevron. The 1984 Chevron decision had long directed courts to defer to the administrative state’s interpretation of the law, granting enormous powers, including the judicial branch’s core power of interpreting law, to an unelected, entrenched bureaucracy. As of this summer, this wrong has finally been set right.
The decision restores critical authorities to their constitutionally mandated branches of government, ensuring accountability to the American people.
What may at first seem like a mere abstract legal issue has had real world consequences for Americans. Chevron took power away from citizens, rendering them nearly defenseless against the tyranny of the administrative state. America’s Founders would be horrified by the cascading effects of this doctrine.
Take the cases that overturned Chevron: Loper Bright and Relentless. In these cases, small fishing companies challenged the National Marine Fisheries Service’s (NMFS) interpretation of the Magnuson-Stevens Act which requires fishing boats take a bureaucrat on their trips to make sure they are following the law. The question in the case was if the law required fishing companies to pay the salary of these bureaucrats – a significant expense at up to $700 per day. By overturning Chevron, the Supreme Court put these fishing companies, and anyone else fighting the administrative state in court, back on a level playing field.
Advancing American Freedom has remained laser focused on seeing Chevron overturned. In our 17 amicus briefs filed on the issue, we led a coalition of a combined 91 other organizations and individuals, arguing in both appellate courts and at the Supreme Court that Chevron was a danger to the liberties protected by the Constitution. Now that the Loper Bright decision has restored an element of judicial power to check administrative agencies, we must ensure that all branches of government reclaim their constitutional authority from the administrative state.
For this reason, our latest amicus brief, Consumers’ Research v. Consumer Product Safety Commission filed this July and joined by 36 other amici, urged the Supreme Court to return constitutional powers currently usurped by the administrative state back to the president. At issue in this case is the inability of the president to remove certain administrative agency heads, empowering these agencies to operate independently beyond the control of the chief executive. Should Congress cede further power to an agency, the agency would in effect function without any meaningful oversight from either the executive or the legislative branch. This situation spells disaster for our system of government and the freedom of all Americans, undermining the ideals and laws of the Constitution. Returning power to the president, however, would restore the Constitution’s balance between Congress and the president in overseeing the functioning of executive agencies.
It is clear that a ballooning and unaccountable administrative state throws a wrench into the constitutional balance of powers essential to the health of our nation. The Constitution creates a system of government comprised of three coequal branches, each of which can balance the power of the other two. In overturning Chevron, the Court has appropriately checked a degree of the administrative state’s power. Now, Congress must summon the courage to legislate in a way that prevents the further illegitimate expansion of federal bureaucracy. At the same time, the Supreme Court should continue to check the expansion of the administrative state at the expense of the constitutional authorities of the president.
The Founders knew that the liberty of the American people depends on limiting government power. The administrative state operates as a fourth branch of government. That problem will not begin to be solved until it is made accountable to the chief executive. Ensuring the God-given rights of the citizens of this country demands reining in the federal bureaucracy once and for all and restoring an equal balance of power among three branches of government.
Marc Wheat Is General Counsel for Advancing American Freedom
Reprinted with permission from RealClear Policy by Marc Wheat.