The Supreme Court Could Deliver A Death Blow To Biden’s Regulatory Agenda



The sole issue at hand in a case that will come before the U.S. Supreme Court — Loper Bright Enterprises v. Raimondo — in its next session beginning this October is whether the legal doctrine known as the Chevron Deference should be upheld. This longstanding doctrine originated from a 1984, 6-0 decision in a case styled Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.; thus, the name.

In the simplest terms, the Chevron Deference holds that the federal bureaucracies should be allowed to compile regulatory actions without interference from the courts. It’s more complex than that, obviously, but this is the basic principle at play. The practical and inevitable outcome from this ludicrous decision has been the exponential expansion of federal regulations and the bureaucracies that promulgate and enforce them.

Basically, if Congress statutorily delegates a matter to a regulatory agency without issuing explicit guidance, then, as long the agency’s regulatory action comprises a reasonable interpretation of the statute, the courts must defer to the agency’s wisdom. The inevitable outcome is agencies with almost unfettered rulemaking authority, since congress seldom promulgates laws containing explicit rulemaking guidance.

It stands as a matter of reason and common sense that, in the long term, the Chevron Deference is unsustainable in and incompatible with the maintenance of a free society. Why? Because, left unchecked, regulators will always — always— act in a way that expands their authority and the size of their organizations. There are no exceptions to this rule in U.S. history, and likely none throughout all of human history.

It almost goes without saying that the Chevron Doctrine stands as a key facilitator of the Biden Green New Deal policy agenda. It is an agenda that bets on and in fact demands massive new expansions of already bloated bureaucracies at federal agencies like the EPA, the Department of Interior, the Energy Department, the Commerce Department, the FERC, and even the Treasury and SEC.

Late Justice Antonin Scalia tried several times to convince a majority of the Court to overturn the Chevron doctrine, but to no avail. Justice Clarence Thomas has in the past been especially vocal among current members of the Court about the illogical nature of the doctrine, at one point writing that the doctrine “wrests from Courts the ultimate interpretative authority ‘to say what the law is,’ and hands it over to” the executive branch. Justice Neil Gorsuch has said the Supreme Court “should acknowledge forthrightly that Chevron did not undo, and could not have undone, the judicial duty to provide an independent judgment of the law’s meaning in the cases that come before the Nation’s courts.”

To illustrate exactly how abusive exercise of the doctrine has become, the case at hand in Loper Bright Enterprises v. Raimondo involves a federal agency forcing entrepreneurial fishermen and women to bear the costs of its own regulatory inspectors, including their salaries. The National Maritime Fisheries Service (NMFS) regulates commercial fishing and decided to force the private businesses to take on the costs when congress failed to increase its budget. This is Soviet-style brutishness and has no place in a free society; yet, unless the Chevron doctrine is tossed out, the Supreme Court will be obligated to rule that it is just a fine thing for federal bureaucrats to require.

Carrying this to the Biden Green New Deal regulatory agenda, a repeal of the Chevron deference could ultimately lead to a conservative Supreme Court rescinding EPA’s ability to regulate non-pollutants like carbon dioxide under the Clean Air Act. The determination that carbon dioxide — the very basis for plant life on planet Earth — is somehow a “pollutant” that falls under the congressional intent of that statute ranks as one of the grandest federal power grabs in American history. Obviously, a determination that EPA lacks this authority would greatly hamper the government’s ability to continue force-feeding Biden’s Green New Deal-style regulatory agenda on the public under the rubric of “climate change.”

So, keep an eye on the progress of Loper Bright Enterprises v. Raimondo. The ultimate decision in that case could turn out to have society-changing impacts.

The Supreme Court is expected to render a decision in the case next year.

David Blackmon is an energy writer and consultant based in Texas. He spent 40 years in the oil and gas business, where he specialized in public policy and communications.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.

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