On January 17th, the U.S. Supreme Court heard arguments for two cases, both regarding “Chevron Deference” and we expect these to profoundly alter the landscape of regulation in the United States: Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce.
The case that provided agencies with deference to interpret laws written by Congress was Chevron U.S.A v. Natural Resources Defense Council, Inc, Et Al., 467 U.S. 837 and found that EPA's interpretation of a clean air statute was a permissible construction and entitled the agency with deference, where the legislative history of the statute was silent on the matter. This tragic case occurred in the middle of Reagan’s presidency and empowered agencies as the 4th branch of government with extraordinary power as an unelected bureaucracy. Agencies rapidly drowned the nation in regulation and debt thereafter – parallels can be foreseen in how a self-aware AI will also be destructive.
This case was more important than the election of a president. Today its undoing is equally important – in fact, existential, but requires a conservative government to protect this normalization as Democrats will use all means to punish SCOTUS and delete this outcome one way or the other.
Meanwhile, most in our government naively plod on assuming the progressive status quo – an establishment frog stew of sorts.
Outside of rubber-stamping continuing resolutions to fund the out of control 4th branch of government, Congress these days does nothing more than little fix-it bills. Near worthless small modifications where they listen to lobbyists and determine that a regulator went too far or made a mistake. Members of Congress then plead or demand in letters to the regulator, who, if a Democrat, ignores them entirely, and if a Republican, cowers in fear and often makes changes after optical pressure. This posture has enabled a progressive leftward drift that is increasing as it approaches totalitarian control.
Hearings provide opportunities for Members to get up on a pulpit and whine about the opposing party or the regulator. CSPAN and internet channels air some of these hearings that few watch. Nothing bores more than watching paint intentionally get wetted so than it can be blow dried; rinse and repeat – so that each member can get a video clip of their false disdain or the dire need for reform. Note, with a proper lobby contribution, disdain often becomes love and vice versa.
The 4th Branch Today – the Federal Agencies:
In fact, even Republican administrations continually progress leftward in agency regulation as the majority of agency staff believe in rules and therefore grow them relying heavily on deference; it takes strong Conservatives to put a leash on their own administration – we saw the backlash when President Trump was in office and the difficulty to stop agencies from bad acts.
Tragic indicative evidence of this permanent progression across government – Establishment Republicans in large part supported mask and vaccine mandates for much of the COVID period and are now generally comfortable with LGBTQ schizophrenic absurdity and in some cases support the alteration of the sex of their own children in a bid to bring on Revelations.
Pre-Existing Regulation that Relied on Deference:
Largely unbeknownst to members of Congress and government, except for a few legal scholars, in particular, Ted Cruz and Mike Lee; the anticipated overturning of Chevron Deference is like a shock and awe campaign on the 4th branch of government and will vastly alter the work-load in Congress. Congressional Committees and member staff will need to raise their game by hiring professionals and true experts to legislate with greater specificity, or risk that ambiguous legislation gets tied up in court for years to come.
Undoing Chevron deference not only changes forward looking legislation and regulation but will trigger broad review of past legislation and regulation. Every instance of deference that led to further rules under an agency’s assumption that it had the authority can now come under scrutiny in the Courts – and to repair the uncertainty that litigation introduces, Congress will often need to act to clarify what it meant – in other words, Congress can’t ignore this nightmare; less vacation, more work.
An implicit delegation of deference on a matter through ambiguous legislation becomes an ever-larger loophole to avoid Congress as complexity in that area of industry and therefore regulation rises. In effect a delegation of power to what appears as a small issue only grows in government as an industry expands around the rule itself; consider Artificial Intelligence in its infancy – the complexity of the issue is not even understood yet so legislation now would empower agencies with vast discretion under Chevron deference. All agencies’ small deferential claims that grew large may soon begin to be undone.
Therefore, the most interesting element of the elimination of Chevron deference relates to pre-existing regulation that resulted from the exercise of deference. Agencies acted with extraordinary creativity and aggression in empowering themselves to broaden and complicate implementation of the law and then demanded funds to hire staff to manage, oversee and enforce the rules that they created. Affected corporations and all stakeholders, except those with woke boards, will sue to undue these rules fabricated under a widening berth of discretion.
The Supreme Court of the United States likely will overturn Chevron v. NRDC.
This is a must watch from oral arguments yesterday during the Loper Bright Enterprises v. Raimondo case:— Carrie Severino (@JCNSeverino) January 18, 2024
Paul Clement brilliantly explained why Chevron deference should not be upheld under stare decisis. He spoke for over four minutes (!) without interruption from any of the… pic.twitter.com/Oth1FJpDpw
Few recognize the significance of what is about to happen, but in short, this is the cudgel to the heart of the establishment. The easy way of life for Congress will end; hard work will follow for Congress and the courts. Federal agencies will be at a loss – much of the expanded Federal framework of government relies on deference to agencies at this point.