Expect Government Agencies to Come Knocking at the Door, Asking for Their Deference Back

A string of recent decisions by the U.S. Supreme Court has modestly clipped the wings of the bureaucratic state, though their significance was all but lost in the political drama of this past month, from Joe Biden’s withdrawal from the presidential race to the attempted assassination of Donald Trump to Queen Kamala’s coronation.

With that kind of excitement, it’s not surprising most people didn’t pay attention to the shellacking the federal bureaucracy was taking over in the Supreme Court. The few news stories there were went so far as to claim the Supreme Court had declared war on the administrative state. They didn’t mean it as a compliment.

To be sure, the justices were doing their level best to whittle away at bureaucratic power. The most important action came in a 6-3 ruling in which the nation’s high court struck down the so-called Chevron doctrine. Under that horrible precedent, when federal agencies backed up their statutory interpretations with a reasonable defense—even if a challenger presented an equally or more reasonable position—the courts had to defer to the government agency.

Sounds pretty rigged for the government, doesn’t it? Well, that’s exactly what it was, the court concluded in its decision, penned by chief justice John Roberts. The doctrine had been in place since 1984’s Chevron v. Natural Resources Defense Council, which held that, when congressional intent on how to implement a statute is vague or ambiguous, the court must give the agency the benefit of the doubt, unless it is so beyond the pale that even Anthony Fauci wouldn’t defend it.

After the decision, conservatives were celebrating, but perhaps they were putting on their party hats prematurely. The decision is a victory, but it needs to be celebrated in measured tones, for in some respects it’s a bigger win for due process than for actually curtailing bureaucratic power.

For one thing, in these decisions, and especially in Chevron, the court was clawing back power it had previously given away. In doing so, it was not so much declaring war on the administrative state as it was carrying out targeted strikes along the executive-judicial jurisdictional border—a skirmish, not an invasion. More important, it is a skirmish that has ignored a third party in the border war, namely, Congress, which for several generations has been desperately trying to surrender to both of the other branches.

Back in 1984, when “due deference” was established, it was generally conservatives who embraced it as a bulwark against activist courts. Why conservatives thought the federal bureaucracy would serve the people’s will any better than liberal judges is a mystery, but that was the case. In any event, simply reversing the transfer of final interpretive power from one non-legislative branch to another, while constitutionally correct, does nothing in and of itself to prevent Congress from delegating its power unconstitutionally to the administrative state through deliberately ambiguous statutes.

And that unconstitutional delegation of power is the native problem. Lawmakers love to write vague laws, either through laziness or as a means of political deflection. They can then blame the bureaucracy for writing egregious interpretations, and now, after Chevron’s overthrow, they will be able blame the judiciary for upholding egregious interpretations. At the end of the day, tossing Chevron is akin to the court pulling the bureaucracy over and giving it a ticket for repeated drunk driving. It helps, but in the end the bureaucrats, betting that feckless courts won’t often reverse them, will be able to keep their legislative license largely intact.

There will be wins and there will be losses, but playing volleyball with rule interpretations—which in fact do belong in the court’s jurisdiction—misses the real point: If Congress did its job in writing specific laws, if Congress stopped handing out broad grants of statutory power to bureaucrats to write the real laws, the need for substantive rule interpretations would dwindle.

And if Congress stood up and fought for its own constitutional rights, our own rights would be a whole lot safer.

Then, too, the Chevron doctrine was always cabined. The Supreme Court itself hadn’t used it since 2016, and tossing it does nothing to stop the federal bureaucracy from thwarting legislative intent in the many statutes in which Congress has, within the statute itself, precluded judicial review, and in others that are not technically but effectively precluded from review.

It also won’t stop bureaucrats from pursuing their own interpretations in guidance documents that are taken as legal gospel.

None of that invalidates a needed and correct Supreme Court decision. It’s just to say the victory may not be as impactful as many would have us believe in curtailing bureaucratic power, in the narrow sense, or righting a non-legislative power imbalance in the broader sense.

Not that progressives haven’t melted down anyway. In her dissent, justice Elena Kagan said the decision “will cause a massive shock to the legal system”: “That rule has .. become part of the warp and woof of modern government, supporting regulatory efforts of all kinds—to name a few, keeping air and water clean, food and drugs safe, and financial markets honest.”

Kagan made it sound like the rule had been around since the Big Bang, and that the judicial system, if not the entire galaxy, would now be sucked into a black hole. She did not mention what the warp and woof of government was prior to 1984 and why the galaxy was not sucked into a black hole before Chevron.

The truth is, Chevron was simply part of an expansionist progressive era, and progressive hysteria over its demise has been delivered in much the same way that they shriek at the mere mention of abolishing the Department of Education, as if it was commanded by holy scripture rather than being a 1979 Jimmy Carter invention.

Both are modern examples of that era’s radical expansion of the administrative state.

Living in Wisconsin, we have seen the handwringing before. In fact, the Badger state booted its own “due deference” doctrine back in 2018, becoming the first of 11 states to do so (or 13, or 15, depending on how you define deference) before the Supreme Court finally crossed the Rubicon last month.

In Tetra Tech EC, Inc. v. DOR, in a decision written by then justice Daniel Kelly, the state Supreme Court directed courts to only consider an agency interpretation’s persuasive value without awarding it deference. The chief concern, Kelly wrote, was the infringement of the constitution’s separation of powers, a signature element of bureaucratic power being the constant transfer of power to executive bureaucracies from the legislative and judicial branches.

“We must be assiduous in patrolling the borders between the branches,” Kelly wrote, quoting James Madison in The Federalist. “This is not just a practical matter of efficient and effective government. We maintain this separation because it provides structural protection against depredations on our liberties. The Framers of the United States Constitution understood that ‘[t]he accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, . . . may justly be pronounced the very definition of tyranny.’”

Consequently, Kelly continued, again quoting Madison, “neither the legislature nor the executive nor the judiciary ‘ought to possess, directly or indirectly, an overruling influence over the others in the administration of their respective powers.’”

After the Tetra decision, the state legislature enacted and Gov. Scott Walker signed legislation codifying the decision, which subsequently survived a challenge to its constitutionality.

Unfortunately, as we have seen time and again, the new progressive majority on the state Supreme Court is not shy about reconsidering decisions of even a year ago, and progressives will likely zero in on separation of powers as a reason to reconsider both the Tetra decision and the statute codifying it.

That reconsideration will be more likely to happen now with the Chevron decision: States are not bound to follow the federal decision, and progressives may feel the need to reinforce deference or bring back deference on the state level now that it has been denied to federal regulators. Indeed, just a month ago, Tony Wilkin Gibart, the executive director of the radical Midwest Environmental Advocates, told Wisconsin Examiner that the end of Chevron deference called for fortifying the state’s regulatory authority.

“We are also seeing, on the state level, legal attacks on the power of state agencies to implement basic environmental and public health laws—like Wisconsin Manufacturers and Commerce asking state courts to upend the spills law—to prohibit the release of hazardous substances,” Wilkin Gibart told the Examiner. “ … The federal government will likely be less effective in doing the kinds of things that most of us expect that it should do, like preserve a healthy and livable future. And for that reason, it is even more important for those of us in Wisconsin to defend and rebuild the power of our state to act in the public interest.”

Or to act on behalf of special interests, as the case may be. So the knocking we will soon hear on the courthouse door will not be a neighbor wanting to borrow of cup of judicial sugar. It will be state agencies (and their progressive partners) asking for their deference back. And, unlike good neighbors, they’ll be willing to torch the place if they don’t get their way.

Progressives will likely home in on separation of powers arguments to make the case for overturning Tetra, just as the Tetra court did in tossing deference. In a 2019 article in Wisconsin Law Review, attorney Amy Buchmeyer observed that separation-of-powers arguments against deference can be muddied and bloodied, namely, legislatures have the authority to write the law and can delegate that authority to agencies either explicitly through legislation or implicitly through “gaps” in the statute.

In other words, as bureaucracies often argue, the vague interpretations of legislatures are often intentional, and, in fact, on that point they are correct: “Under this understanding, a court that ignores the agency’s interpretation of the law basically ignores the legislature’s authority to write it,” Buchmeyer wrote.

Once again, that line of reasoning treads where no one should want to go—toward the boundary waters of non-delegation. Still, it’s a potent enough argument—shall we say ‘reasonable’?—to give progressive justices the excuse they need. Don’t be surprised, then, if due deference soon makes its way back to the state court’s docket.

Still, as Buchmeyer pointed out, there’s an even better argument than separation of powers to uphold the end of deference: due process. That is to say, the due process position creates no murkiness, and always slams the door in deference’s face.

“When the average American citizen goes to court, she is constitutionally entitled to one of the most foundational aspects of due process: an impartial tribunal to hear her claim,” she wrote. “Deference to agency interpretations of the law strips her of this right. She does not receive a fair hearing because the impartial tribunal hearing her case surrendered its impartiality.”

Due process, Buchmeyer argued, “interferes with justice every time a judge defers.” I’m oversimplifying Buchmeyer’s overall argument—she uses due process to reframe the very way we approach deference cases—but her due process take is critical to constraining the bureaucratic state not only in its declaration of what the law is but in its exacting of liberty from its citizens.

Not that Kelly and the majority in Tetra didn’t touch upon due process. It did. As Kelly wrote, when a court defers to the governmental party only because it is the government, that’s unlikely to instill in opposing parties a sense of basic fairness: “The injury arises not from the reason the court favors one party over another, but from the fact that the court has a favorite at all.”

Further, Kelly wrote, that systematic favor deprives the non-governmental party of an independent and impartial tribunal. Which is, of course, exactly what the bureaucracy wants.

In a concurring opinion in last month’s U.S. Supreme Court decision, justice Neil Gorsuch also homed in on the structural preservation of individual liberty as the major strike against due deference.

“Whenever we confront an ambiguity in the law, judges do not seek to resolve it impartially according to the best evidence of the law’s original meaning,” Gorsuch wrote. “Instead, we resort to a far cruder heuristic: ‘The reasonable bureaucrat always wins.’ And because the reasonable bureaucrat may change his mind year-to-year and election-to-election, the people can never know with certainty what new ‘interpretations’ might be used against them.”

Gorsuch pointed to the ancient rule of lenity—when a law is unclear or ambiguous, the court must apply it in the way that is most favorable to the defendant or to construe the statute against the state—as another of Chevron’s victims.

“That principle upholds due process by safe-guarding individual liberty in the face of ambiguous laws,” he wrote. “And it fortifies the separation of powers by keeping the power of punishment firmly ‘in the legislative, not in the judicial department.’ But power begets power. And pressing Chevron deference as far as it can go, the government has sometimes managed to leverage ‘ambiguities’ in the written law to penalize conduct Congress never clearly proscribed.”

So the obituary of Chevron is in a sense a birth announcement for individual liberty. That said, progressive courts are always lurking in the weeds fishing for red herrings, and they can ignore legitimate due process arguments as easily as they can separation-of-powers arguments. Even when they don’t, the Chevron decision still leaves the bureaucratic state free to prowl and cause mischief outside the walls of its constitutional jurisdiction.

To grapple with that reality, conservatives need to focus on ways to constrain the bureaucracy outside the courtroom, as Christopher Walker, a law professor at the University of Michigan, argues in “Constraining Bureaucracy Beyond Judicial Review,” in MIT’s Daedalus in 2021. Essentially, Walker correctly argues, “if judicial review provides no safeguard against potential abuses of power in most regulatory activities, we must turn to other mechanisms.”

For example, Congress should embrace the practice of regular reauthorization of statutes that govern federal agencies, Walker wrote, including regular assessment of agency action and sunset provisions. Most important, Walker asserted, Congress should more regularly use reauthorization to mitigate the “democratic deficits that come with broad delegations of lawmaking authority to federal agencies.”

For any of that to happen, Congress must take back—or be forced to take back by popular pressure—its constitutional powers. And it must fortify administrative oversight that is woefully lacking today, both on the state and federal level.

The end of Chevron is the end of a long, dark day in the republic, in which judges served as rubber-stamping clerks for the administrative state. But it is no panacea, and it is no substitute for legislatures taking back and asserting their rightful powers.