Dereliction Of Duty
The Supreme Court appears to be the only branch of government that still understands and does its job. Today, I discuss three upcoming cases at the Court that highlight some major problems with how our government has been working and will shape how it will work in the future.
The first two, Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce, are to be heard together on January 17th. Both cases are about who pays for government monitoring of herring fishing in New England. A rather arcane bit of argument, but the cases are really about a precedent called the Chevron Deference. Born of the 1984 SCOTUS case Chevron, U.S.A., Inc. v Natural Resources Defense Council, Inc., Chevron says that when a law or statute establishing or governing a federal agency is ambiguous in a certain application, the courts must defer to the agency's interpretation of that law or statute.
Chevron has been controversial since it was ruled, and has been used by federal agencies to vastly expand their power. It has also enabled Congress to write the equivalent of "blank check" laws that tell agencies "do this," and leave it up to them as to how.
The third case, Garland v Cargill, is to be heard on February 28th. This case, nominally about whether the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE) can regulate or ban bump stocks via the power to regulate "machineguns" granted by the 1934 National Firearms Act (NFA). Bump stocks, if you are unfamiliar, are gizmos that can be incorporated into semi-automatic rifles so that they can kinda sorta mimic fully-automatic firing operation. Again, for the unfamiliar, semi-automatic means one bullet is fired per squeeze of the trigger, and fully-automatic means multiple bullets are fired per squeeze of the trigger (those would be “machineguns”). The BATFE issued an opinion that bump stocks are indeed "machineguns" (that's how the NFA spells it, in case you were wondering). Garland v Cargill challenges the agency's authority to make such a decision absent clear legislative authority from Congress.
Though the cases are nominally about fish and guns (which sounds like a great weekend), at their core they are about the extent to which Congress can delegate its role as lawmaker to the Executive Branch. I recently wrote about fears of a dictatorial sort assuming the Presidency, and how the notion of an "emperor-President" is the result of Congress's long-running abdication of its proper role in our tripartite government. More and more, the laws that Congress writes are giant, omnibus messes that no one reads and that often include things of the form "Agency_01 shall make X happen," with the nuts and bolts left to Agency_01.
This shifts lawmaking authority away from the legislature (remember, all those agencies answer to the President, not Congress), and away from the people elected by the citizens of the various states and congressional districts.
To reiterate, these cases aren't about who pays for herring fishery monitoring, or whether bump stocks should be banned. They are about who decides. They are about the separation of powers fundamental to our system, and about preserving the idea of representative government. Congress's delegations haven't been "downward," as in the reps and senators telling their aides to do stuff. They have been "outward." They've given the President, via the agencies he controls, the power to write law.
This is wrong, and this is why the Court should rule against the government in all three cases. Overturn the Chevron Doctrine, tell BATFE that absent specific legislation it cannot ban bump stocks, tell Congress that if it wants bump stocks banned it should write a law, tell the people who want an imperial Presidency with their person in charge "no, it doesn't work that way," and tell the people who fear an imperial presidency "we got your back."
How the justices vote will tell us which of them prioritize process and the rule of law, and which prioritize outcomes. Sounds like the difference between "equality" and "equity," no?
The track we're on currently is that when an offended party detects an overreach by the regulatory agency, they take it to court. That's how executive authority is currently constrained. So the executive agency is free to push the limits - until such time as someone is offended by the pushing. A reasonable question is - is that what the Founders intended? That our freedom is contingent every day upon the latest whim of an executive agency, and if we value that freedom, then we need to take it to court.. And the cost in time and money is ours to bear while the case is sorted out. I would hope the SCOTUS sees the Bigger Picture here and issues a broader decision that severely restricts executive authority, that if the Congress didn't specifically grant a power, that power does not exist.
One other note--Agency X ostensibly reports to the executive, but as we have seen--these agencies have become a law unto themselves. The "non-political" employees do what they want and often ignore the titular heads (read, political appointees) of their departments. The Supreme Court needs to stop agency rule/policy setting because it often doesn't even represent the wishes of the elected executive whether or not they are a megalomaniac--further, the bureaucracy has certainly become megalomaniacal in implementing its agenda regardless of who is in the White House.