Landmark!
I'm not often given to hyperbole (hahahahaaaaa, sure I am), but today I'm going to hype what I believe to be the most momentous moment of 2024 so far. No, it's not Trump's criminal conviction in a (highly suspect) trial over mislabeling of hush money. No, it's not Biden's clear demonstration of his mental decline at the first Presidential debate of the year.
It's a court case about a fishing company in New England that was forced to pay for observers put on its ships by the government.
Sounds picayune? No argument here. But, the case, Loper Bright Enterprises v. Raimondo, made it to the Supreme Court and produced what I predict will be a seismic shift in how our government operates. For the better.
The Court's ruling in this case overturned (forcefully, as some have noted), the "Chevron deference," a doctrine that emerged from another Supreme Court case, Chevron v NRDC, ruled upon in 1984.
That doctrine required, in cases involving ambiguities or uncertainties in laws and statutes, to defer to the interpretation put forth by the government agency implementing those laws and statutes. The argument was that no law can cover every contingency or real-world instance, so government "experts" in the Executive branch, and not judges, should be granted authority, or "deference," in those instances when they arose in court.
Chevron is at the root of the explosion of the size and scope of the administrative and bureaucracy that we've witnessed across the past four decades, which is one of several facets of the growth of the power of the Presidency and the Executive Branch. Chevron also enabled Congress's abdication of its role as the writer of law and the "new normal" of giant "must pass or the government shuts down" omnibus laws whose contents no one knows in lieu of real and specific legislation.
As Francis Menton observed in his blog, Manhattan Contrarian,
"Chevron deference" is the ultimate unfettering of the government to enable it to expand as much as it wants, and with nothing to stop it.
Good-government naifs are, of course, outraged at the returning of interpretive power to the courts, no matter that interpreting the law is the courts' job, and has been for centuries. As Justice Gorsuch noted in his concurrence, the roots of this role run throughout the "common law" that precedes, predates, and is foundational to our American system.
In disputes between individuals and the government about the meaning of a federal law, federal courts have traditionally sought to offer independent judgments about “what the law is” without favor to either side.
Chevron upended this, requiring judges to tip matters before them toward the government, on the presumption that the government's bureaucrats held both expertise and the public good in their heads and hearts.
Anybody who's paying attention should scoff at this presumption, of course. Government is, as you and I know, full of midwits and partisans drunk on power and with little to no regard for your and my rights and liberties. It's also deeply influenced by rent-seekers and other corruptors who care even less about respecting your and my rights and liberties.
If you feel the government overstepped its authority in some instance that involves you, your remedy is either an appeal to the agency or a court action. But, if the court is mandated to defer to the agency that you feel overstepped its authority, where else can you turn?
Your Congresspersons?
They have proven themselves to be all too happy abdicating their authority to the agencies.
But now, after the Loper Bright case, Congress is going to have to go back to doing its job. Agencies can't make crap up as they go along. And you, the average citizen, will again have real recourse.
The government leviathan will not go away quietly, and I expect that, as with several other recent landmark cases (see: Bruen), bureaucrats will do their darnedest to retain their power over your rights and lives, but a tool that has enabled this ever-upward ratcheting of the size and scope of government is now gone.
In the words of Judge Elihu Smails, this is a biggie.
Separation of powers is a vital check on government. Loper Bright is a big step toward restoring it.
In his book Three Felonies a Day, civil-liberties lawyer Harvey Silverglate estimates that the average person unknowingly breaks at least three federal criminal laws every day. Clear brush on your property and you're likely breaking a law. Collect rainwater from your gutters, same thing. Use a "modified" gas can to fill your mower - don't get caught! And on and on it goes, literally infinitely. The agencies even have their own "administrative courts" to decide whether you broke "their laws" through your action, and it shouldn't surprise they near unanimously find against us.
It's much worse for businesses, like Loper Bright, who are desperately trying to stay competitive and producing goods at the lowest price possible - against a regulatory regime that quite literally "doesn't care" if they survive or not. Imagine having a government inspector living in your home every day, watching over your daily activities to make sure you don't break their laws - and having to PAY to have that person in your home!
It was inevitable that agencies would abuse the Chevron deference and unleash this monstrous regulatory burden on us. Thank goodness for the Court in finally ending this nightmare.
I expect that the courts will be overwhelmed with challenges to regulations.