Kemp right to urge high-court rollback of regulatory power
Depending on your political persuasion, the last few years have either been a golden age for the U.S. Supreme Court or a dark era of eroding rights and protections.
Thanks in part to U.S. Senate Minority Leader Mitch McConnell and former President Donald J. Trump, the court now enjoys a conservative supermajority. In fact, Republican presidents have nominated six of the court’s nine justices, and they’ve ruled like you might imagine.
Since U.S. Supreme Court Justice Amy Coney Barrett joined the court, they’ve taken on numerous landmark cases dealing with abortion, gun rights, religious freedom, the Environmental Protection Agency and so on. In the process, the court has seemed pleased to ignore the legal doctrine of stare decisis, which gives deference to previous rulings, and overturn precedent. Doing so is absolutely necessary at times, given that some legal precedent is horribly misguided.
The maverick court has received plaudits from conservatives for its decisions, and now the court is poised to rule on a little-known—but incredibly influential—principle known as Chevron Deference. Despite being an under-the-radar case, the Gov. Brian Kemp administration has weighed in on it and even filed an amicus brief with the court hoping to put an end to the principle, and the court would be wise to consider Kemp’s concerns.
Chevron Deference is a cornerstone in administrative law, but it is massively problematic. It stems from a 1984 U.S. Supreme Court case: Chevron v. Natural Resources Defense Council. Following oral arguments, “the Supreme Court ruled that courts should defer to a federal agency’s interpretation of an ambiguous statute as long as that interpretation is reasonable,” according to SCOTUS Blog.
In essence, this gave bureaucrats broad legislative powers that the courts were instructed to respect. While this may seem like a boring administrative law issue, there are serious constitutional and practical implications with the nearly 40-year-old precedent.
Georgian and current U.S. Supreme Court Justice Clarence Thomas wrote that Chevron Deference “wrests from Courts the ultimate interpretative authority ‘to say what the law is,’ and hands it over to” executive agencies. Without a doubt, it does just that by curtailing the high court’s ability to determine the constitutionality of certain laws, but it does much more. It gives unaccountable federal bureaucrats a kind of legislative authority through which they can fill in the gaps of federal law so long as they are acting “reasonably.”
What’s more, Chevron Deference encroaches on states’ rights. As the Kemp amicus brief reads, “As federal agencies continue to promulgate regulations that impact the everyday lives of Americans, the role of the States is diminished. Even where federal action does not directly preempt state policies, federal actions constrain how states may exercise their reserved powers under the Tenth Amendment.” Clearly, this is a perversion of what our founding fathers had envisioned when they designed our system of separation of powers and checks and balances.
The risk of perpetuating Chevron Deference poses a real threat in practice too. The broad, unchecked authority can empower federal agencies to govern themselves and regulate private citizens and businesses largely as they see fit. Thus, Chevron Deference can be exploited to achieve activists’ goals never contemplated by Congress, like “rules on climate, gun ownership and financial markets,” reports the Wall Street Journal.
Regardless of where you fall on those particular regulations, I’d imagine that you’d prefer a legislative body to set them, not unaccountable bureaucrats, but in reality, that’s part of the problem. Congress doesn’t like doing its job. Its members are generally at loggerheads, which has left Congress at a standstill. Other than in instances when a single party controlled both legislative chambers, its members haven’t sent many pieces of meaningful legislation to the president recently.
Even when Congress passes legislation, too often its members are happy to draft vague bills, which relieves them of having to make hard decisions. Instead, it leaves it up to regulating agencies to do it for them. This is little more than a dereliction of duty, but is unsurprising for a body more interested in bickering, holding meaningless hearings and dominating media cycles.
The U.S. Supreme Court will likely hand down its decision on Chevron Deference sometime this summer. The Kemp administration has called on the court to overturn the Chevron ruling, and the amicus brief doesn’t mince words. “The short answer is that nothing must take Chevron’s place. Any skepticism of this truth is merely skepticism that Congress can perform its constitutional duties without relying on the flawed crutch that Chevron provides.”
While there are several directions that the justices can go, they ought to curtail Chevron Deference, respect our constitutional forms and urge Congress to get back to work. That would be a win—not just for Georgians—but all Americans.