Deference Deterrence:

Will Supremes Let the Bureaucrats Keep Running Wild?

Thanks again to the California globe for running this piece. You can visit the website at: https://californiaglobe.com/

Note - I don’t typically post pieces back-to-back, but they are related, the “Su Sued over Freelance Rule” piece being a potential specific example of the consequences of the court’s actions on deference.

There is a legal thing called “Chevron deference” and it has encouraged the massive growth of the power and scope of the bureaucratic state over the past 40 years.

Named after a 1984 legal case, the doctrine holds (in a nutshell) that courts must defer to the wisdom of the implied expertise of a government agency when deciding certain legal questions. 

In other words, if the Deputy Assistant Undersecretary for Global Performative Planning, Department of Commerce, decides that X is true and/or to be done it doesn’t really matter that Congress never really envisioned the law being interpreted that way and it can’t be stopped because the court has to go along with it – sorry, government-suing plaintiff - because the Deputy Assistant Undersecretary for Global Performative Planning said so.

(Note: that’s not a real job, but when you Google the phrase hundreds of very similarly titled real government jobs appear.  Shudder.)

Wednesday, the United States Supreme Court heard arguments in a pair of cases filed by east coast fishermen that goes directly to the heart of Chevron deference.  The fishermen complained that the Commerce Department was forcing them to pay $700 a day to a government employee to stand on the boats and monitor their activities.  Lower courts ruled against them, citing in part Chevron deference, hence their appearance at the Supremes.

“It violates Article 3 of the constitution,” said plaintiff’s attorney Roman Martinez.  “Chevron mandates judicial bias” because it essentially precludes the court from ruling on behalf of the plaintiffs (again, nutshell.)

While it may seem obscure, the ramifications are vast, especially when it comes to rules and regulations like those instituted by Julie Su’s (kinda) Department of Labor regarding freelance work.  The rule is so confusing as to be impossible to fairly follow, let alone interpret, automatically pushing its use into Chevron territory.  In other words, the Labor bureaucrats will be able to determine who is a freelancer and who is not and avoid being challenged in court. In fact, Su has already been sued over this matter.

However the court rules on Chevron it will have serious consequences.

Ramirez also noted the troubling contradiction at the center of the discussion -

“So the statute says courts do the interpretation. Chevron says agencies get interpretive authority, not courts. These are inconsistent,” Martinez said.

At the core of the argument is who gets the last word on regulatory issues and such – the bureaucrat or the court.  Sounds a bit “devil and the deep blue sea,” but leaving omniscient interpretive power in the hands of a bureaucrat tends not to work out terribly well.

See Dr. Anthony Fauci, Dr. Deborah Birx, and Dr. Francis Collins RE: COVID.

Associate Justice Elena Kagan – who backs Chevron – said the courts should “defer to people who actually know things” about the topic at hand.

See Dr. Anthony Fauci, Dr. Deborah Birx, and Dr. Francis Collins RE: COVID.

And see the deserved devastation of the public trust in the entire expert class over the past five or six years.  Kagan’s “trust the experts” argument may have seemed reasonable in 2004, but in 2024 is ludicrous.   

Justice Ketanji Brown Jackson claimed that Chevron was doing the “important work of helping courts stay away from policymaking.”

By automatically letting unelected, faceless bureaucrats do it, one supposes.

The expert reliance argument falls on its face because the “experts” to be relied upon tend not to be actual experts.

Of course there are thousands of lab techs and mathematicians and coders and fish counters with the government who really are experts in their field.  But they tend not to make the final call, to set policy.  That is typically done at the “appointed” government person level.

“Today’s experts are partisans,” said Michael Lotito, Co-Chair of the Workplace Policy Institute in San Francisco.  “Both parties do it.”

Lotito said overturning Chevron would be an important step in limiting the power of the “administrative state.”

‘We live in an administrative state and the administrative state gets deference from the court” under Chevron, Lotito said.  “And the administrative state has created a constant state of regulatory churn. A regulated group values certainty, reliability.  For the regulated community, Chevron is a nightmare,” said Lotito.

Solicitor General Elizabeth Prelogar – who argued on behalf of the government to keep Chevron - said the doctrine followed precedent that long predated its formal creation and unwinding it would cause "profound disruption” and that litigants would "come out of the woodwork" to re-open old cases, etc.

Overturning Chevron would be a “a shock to the legal system,” Prelogar said.

As for the justices, they appeared to split along philosophical lines – as usual – with the three left-leaning justices wanting to keep Chevron, while the five right-leaning justices seem ready to toss out Chevron.  As for Chief Justice John Roberts, who knows, though considering his past decisions he may push to find a “middle ground.”  There is precedent for that: in a case called Skidmore years ago, the court ruled that judges must consider and weigh evidence brought forward by a government agency but it does not automatically have to say “yes.”

The ruling is expected in early Summer.

Here is a copy of the transcript of the hearing:

https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/22-1219_c07d.pdf