Two very important court decisions came down this past week but got lost in the noise following Sundown Joe Biden’s incredibly, terribly bad debate performance. Depending on whom you ask, these cases have significant, far-reaching consequences for executive branch power and its abuse.
The first was related to Administrative agency courts. These in-house star chambers operating as prosecution, judge, and jury have been handing out judgments (penalties), but the US Supreme Court, at least in the case of the Securities Exchange Commission, has ruled they can no longer operate this way. “In Securities and Exchange Commission v. Jarkesy [SCOTUS decided that]… the SEC cannot continue to handle [these] cases in-house without a jury. The decision will have a far-reaching impact on dozens of federal administrative agencies that use similar processes.”
I’m not clear on how many agencies are affected, but this ruling throws a monkey wrench into the intimidating Rube-Goldbergian works of Executive overreach, and not just at the federal level. States have plenty of agencies that operate their own in-house tribunalesque mini-courts. Executive Branch Judge Dredds. If SEC vs. Jarkesy has the potential to invalidate dozens of similar mechanisms at the federal level, it might have the legs to undermine local star chambers in your neck of the woods.
The other, bigger decision struck down Chevron Deference. The 40-year-old rule allowed agencies to decide the meaning behind ambiguous law. This rule-making authority gave them power to make law, long argued as constitutional by almost anyone who found themselves on the business end of the practice.
By a vote of 6-3, the justices overruled their landmark 1984 decision in Chevron v. Natural Resources Defense Council, which gave rise to the doctrine known as the Chevron doctrine. Under that doctrine, if Congress has not directly addressed the question at the center of a dispute, a court was required to uphold the agency’s interpretation of the statute as long as it was reasonable. But in a 35-page ruling by Chief Justice John Roberts, the justices rejected that doctrine, calling it “fundamentally misguided.”
Put more simply, if Congress was unclear, and not surprisingly, it got increasingly unclear after Chevron became the hot blonde in Admininstrative overreach, agencies that guess and then enforce the guess will no longer get a by your leave from the courts. Instead of saying, well – the Executive Agency rules are just as good as if the legislative Branch had written it that way, the courts can meddle based on their own interests.
Take that how you like, but what I found most amusing was that the Dissenters, Kagen, Sotomayor, and Ketanji-Brown, are worried about the shock to the legal system. It does seem likely that this will result in a lot more trips down the judicial aisle—especially taken in the context of Jarkesy—but Chevron is only 40 years old. It is a blip in the historical context of the American government.
What the hell did we do for the 208 years prior to it?
I’ll make a suggestion. We did not encourage laws deliberately written to protect legislators from the consequences of their rule-making by passing them off to bureaucrats. The government did not embrace the bloat required to manage, deploy, enforce, and litigate bills written this way.
Chevron wasn’t precedent. It was an experiment that The Robert’s court has just ended, and it will be messy. The solution is to demand that Congress revisit the mess they created and craft new or amended language to clean it up – unless judges decide to legislate from the bench to save them the time. So, yeah, there are pitfalls here.
So, no, I am not saying that would be an improvement. But advancing tyranny without electoral consequence just took a punch to the McNuggets, and it will be interesting to see what results.
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Author: Steve MacDonald
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