You Can’t Defend ‘Democracy’ and the Administrative State

David Harsanyi / January 26, 2024

The government shows up at your business and demands you pay the salaries of the regulators who lord over you. If you refuse, you’ll be ruined. You have little recourse. You’ve never even voted on the policy because no law implementing it exists. Bureaucrats in D.C. cooked up the idea, and a political appointee signed off on it.

That’s what Loper Bright Enterprises v. Raimondo, a case brought by New England fishermen against Commerce Secretary Gina Raimondo, is all about. It may finally end or weaken Chevron deference, which refers to a 1984 decision that inadvertently empowered the administrative state to take wide-ranging, illiberal powers over American economic life.

I mean, the case of the fishermen is basically a modern reenactment of “taxation without representation.”

Yet when the Supreme Court took up oral arguments in Raimondo, the three leftist judges didn’t focus on the constitutionality of Chevron deference, but rather lamented the alleged problems of stripping government experts of their power.

Here is how The Washington Post’s Ruth Marcus frames the arguments: “Who decides? From the liberal point of view: unelected judges or regulators with expertise and accountability? From the conservative vantage point: judges constitutionally empowered to say what the law is or unelected bureaucrats?”

It’s difficult to comprehend how any jurist who swore to uphold the Constitution could agree with the “liberal point of view.” Justices are “unelected” by design. It’s not a gotcha. It’s the point. And it is literally their job to “decide” the constitutionality of the laws and their implementation. Failing to do so is an abdication of their duty. Yet the contemporary Left treats SCOTUS as if it were some autocratic Star Chamber for doing its job.

Nowhere, on the other hand, does the Constitution say one word about unelected bureaucrats deciding the law. The executive branch, as the name strongly suggests, is tasked with executing laws as written.

The Right initially cheered Chevron as a way to blunt judicial activism. But the allowances for “reasonable” decision-making when ambiguity exists in the law have been so abused that agencies like the Environmental Protection Agency will regulate every puddle and molecule of carbon dioxide.

Then again, the claim that regulators have unassailable “expertise” or real accountability is also a myth.

Democrats act as if they have a monopoly on apolitical, policy expertise. But there are almost always major disagreements over the efficacy and scope of regulatory policy, which is why politics exists, and why Democrats are keen on bypassing Congress and debate.

Moreover, the notion that government regulators are the best and brightest and attain their position through merit is complete bunkum, as anyone who’s paid more than five minutes of attention to the government already knows. This is especially true of political appointees, whose most valued skills are navigating bureaucracies and risk aversion.

Indeed, bureaucrats do not function under a notion of “accountability” that most normal people would recognize. When was the last time an agency cleaned house because its policies had failed? When was the last time the administrative state was reined back in any genuine way? How many regulators or appointees are ever fired? If you were as bad at your job as Homeland Security Secretary Alejandro Mayorkas, you’d be out of work forever.

That said, even if regulators were blessed with extraordinary work ethic, exceptionally creative minds, and all the best ideas, they would still have zero right to create laws out of whole cloth.

Yet all the most vocal defenders of saving American “democracy” happen to think Chevron deference abuses are integral to governance. Read left-wing punditry on the topic and you might walk away with the impression that federal agencies didn’t even exist until 1984.

The histrionics over the potential death of Chevron deference is just another example of the Left’s abandonment of anything resembling a limiting principle. It’s all consequentialism, all the time. Anything Democrats dislike is an attack on “democracy.”

What Chevron deference does is incentivize Congress to write vague laws and presidents to abuse their power. It creates instability, as every administration implements its own preferred interpretation of the law. It threatens to further destroy the separation of powers. It was a huge mistake. And, as opposed to most of the Left’s hysterics these days, it’s a real threat to “democracy.”

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