USA 2024 Elections Thread

grarpamp grarpamp at gmail.com
Fri May 12 19:52:59 PDT 2023


The Supreme Court Might Curb The 'Deep State' By Overruling The Chevron Case

https://www.theepochtimes.com/the-supreme-court-might-curb-the-deep-state-by-overruling-the-chevron-case_5258485.html

The Supreme Court will not be announcing its decisions in most of this
year’s big cases until June or early July. But the court recently
agreed to consider a case that could trim the power of the “deep
state.”

The “deep state” is a web of federal administrative agencies, career
politicians, lobbyists, and compliant mass media. It acts as a shadow
government that largely sets the nation’s political agenda.

The deep state has been around for decades, but is more powerful than
ever because the federal government is larger and more intrusive than
ever. Most Americans witnessed deep state power for the first time
during the Trump administration, when it publicly resisted the
authority of an elected president.

One prop of the deep state’s power is the 1984 Supreme Court’s ruling
in Chevron v. Natural Resources Defense Council (pdf). That ruling is
called the “Chevron doctrine.” On May 1, the justices granted
certiorari in (that is, agreed to review) a new case in which they may
overrule the Chevron case and its “Chevron doctrine.”
The U.S. Supreme Court in Washington on April 19, 2023. (Anna
Moneymaker/Getty Images)
The ‘Deep’ Background

The Constitution created a democratic federal republic. It instituted
an elected Congress to make laws, an elected president to enforce
laws, and an appointed judiciary to resolve disputes under those laws.

In addition to empowering the new government, the Constitution also
limited it. The Constitution included some specific exceptions to
federal authority, such as the first eight amendments in the Bill of
Rights. It also reserved most governmental functions to the states, a
reservation encapsulated in the Ninth and Tenth Amendments.

People who wield power are seldom happy with limits on their power.
Federal officials and those who cater to them always pushed back
against the Constitution’s limits. Those limits began to fall in
earnest during the late 1930s and early 1940s. Instead of resisting
the assault, liberal majorities on the Supreme Court “reinterpreted”
the Constitution to accommodate the assaulters. I described the
court’s decisions during that era in my Epoch Times series, “How the
Supreme Court Re-Wrote the Constitution.”

This process of constitutional distortion slowed after 1944, but it
didn’t end. It continued for the entire six decades that liberal
justices comprised a majority—that is, until late in the 20th century.

In Epoch Times essays published in 2021 and 2022, I described the
major themes of the liberal jurisprudence that prevailed throughout
most of the 20th century. That jurisprudence is now embedded in the
court’s case precedent.

Liberal justices enormously increased the authority of Congress. For
example, they transformed Congress’s power to regulate Commerce
(Article I, Section 8, Clause 3) into authority to oversee the entire
national economy. They changed Congress’s power to tax (Article I,
Section 8, Clause 1) into a license to spend for almost any purpose.
These and other changes rendered the federal government supreme in
American life.

Not only did liberal justices permit Congress to exercise almost
unlimited power, they also permitted Congress to delegate it to
unelected administrative agencies. Congress may (and frequently does)
pass a statute creating an agency and telling it to regulate some
broad swathe of activities, and—voilá!—Americans are saddled with a
new set of bureaucratic masters.

It’s true that the court has stated restrictions on Congress’s ability
to delegate, but those statements are mostly empty words. The justices
readily approve vague and undefined delegations such as “this agency
may regulate the airwaves in the public interest.”

Liberal Supreme Court majorities also stacked the rules heavily
against any citizen challenging federal power. Outside of a few areas
(such as freedom of speech) a citizen claiming a federal law is
unconstitutional must prove that there’s no possible constitutional
reason for the law. (This was why Obamacare’s insurance mandate was
upheld on the silly (pdf) theory that it was a “tax.”)
How Chevron Fits In

Just as the court imposed an almost impossible burden of proof on
citizens challenging a law’s constitutionality, the Chevron doctrine
imposes a similar burden on citizens challenging the power of federal
agencies. The doctrine says that an agency almost always has the final
word on whether federal law gives it the powers it claims. Courts must
defer to these self-interested agency decisions unless they are
“unreasonable.” In constitutional law, it’s exceedingly difficult to
prove that a government decision is “unreasonable.”
The Un-Conservative Supreme Court

As I have explained in several Epoch Times essays, contrary to the
mainstream media narrative, the current Supreme Court doesn’t have a
6–3 conservative majority. Rather, the bench is highly fragmented: It
contains three liberal activists, one nearly pure originalist, one
justice who usually defers to government decisions (liberal or
conservative), and four others in between.

As a result, the current court has left almost all the liberal case
precedents in place. (The principal exception, Roe v. Wade, was an
unusually weak decision but even so it was overruled by only a bare
5–4 majority.) When the media characterize a ruling as “conservative,”
it’s often because the court has applied a liberal precedent that
liberals no longer find convenient.

Thus, the current composition of the court suggests that, just as it
has preserved other liberal precedents, it may well preserve Chevron.
Criticisms of the Chevron Doctrine

On the other hand, there’s some evidence the justices may overrule
Chevron. Several justices have been critical of the Chevron doctrine.
They and other commentators point out that:

    The doctrine makes an agency a judge in its own cause, thereby
violating the Constitution’s guarantee of due process of law;

    it encourages agencies to expand their power;

    administrative agencies are part of the executive branch, so
allowing them to make legislative or judicial decisions violates
separation of powers; and

    the Chevron decision was not well considered, and over time the
Supreme Court has had to carve out exceptions.

Another reason for believing that Chevron’s days are numbered is that
the court didn’t refer to it when adjudicating recent cases on the
limits of agency authority.
The Present Case

The case the court agreed to hear is Loper Bright Enterprises v.
Raimondo (pdf). Loper Bright Enterprises is the plaintiff. It operates
fishing vessels in the Atlantic Ocean.

The defendant, Gina Raimondo, is the Secretary of Commerce. Part of
her department is the National Marine Fisheries Service (NMFS), which
Congress created to regulate fishermen.

Federal law allows NMFS to require fishing boats to carry official
observers to ensure compliance with federal regulations. That much is
undisputed. But the NMFS also claims federal law allows it to force
fishermen to bear the cost of paying the observers. Loper Bright
disputes that.

The appeals court held that under the Chevron doctrine, the fishermen
lose because the agency’s interpretation isn’t completely
“out-to-lunch.” But if the Supreme Court overrules Chevron, the
fishermen will have a chance to persuade a judge that the NMFS
exceeded its power.

The case probably will be argued in the fall and decided before June 30, 2024.


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