In LOPER BRIGHT ENTERPRISES ET AL. v. RAIMONDO, SECRETARY OF COMMERCE, ET AL. (“Raimondo”) the Supreme Court of the United States overturned the “Chevron deference,” a doctrine dating to the 1980s that said in judging whether a regulatory agency had exceeded the authority delegated to it by Congress, courts must defer to the agency’s interpretation of any ambiguous language in the law.
This is being decried by liberals as a crippling blow to the federal government’s ability to regulate and lauded by conservatives as a welcome return to stricter obedience to the Constitution.
In reality, it is just more hacking at the branches by SCOTUS rather than striking at the root.
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The root of the problem is Congress delegating any authority to make rules at all to the executive branch. The Constitution is clear that the legislative power is delegated exclusively to Congress, meaning any rules either prohibiting or requiring human action must be written by legislators elected for that purpose, passed by both houses of Congress, and signed by the president. Calling the rules federal agencies write “regulations” instead of laws doesn’t change anything. It’s still legislating and any person honest with himself knows this.
Congress has no constitutional authority to delegate this power to another branch of government. There is a legal doctrine older than Chevron expressing this called the “nondelegation doctrine.” SCOTUS referred to it in its decision on President Biden’s proposed Covid vaccine mandates. But rather than striking down Congress’ ability to delegate its legislative power to the executive, rampant since the New Deal, the Court merely ruled Congress can’t delegate this power too much.
Hacking at the branches.
This has been the case with all the supposedly monumental decisions by the supposedly “hard right” Court that includes three appointments made by former President Donald Trump. Presented with opportunities to confront three spurious legal doctrines from the 20th century that allowed power to be unconstitutionally transferred to the federal government in general and its executive branch in particular, the Court has largely affirmed these doctrines, merely massaging them differently to get results conservatives like.
The problem is that if even this Court, considered extreme by today’s standards, will not fundamentally enforce the nondelegation doctrine or strike down the Incorporation Doctrine, there will never be a chance to do so again.
This is a consent of the governed issue. It is not so much a matter of whether one or another of the particular laws or powers exercised are good or bad in a vacuum. It is a matter of who is exercising the power and how they acquired it. Our founding document preceding even the Constitution says government derives its just powers from the consent of the governed. And no one ever consented to the federal government striking down state laws or the executive branch legislating. On the contrary, the delegates at the constitutional convention emphatically denied the former power to Congress although proposed by Madison throughout the summer. The latter power wasn’t even considered as their separation was a foundation pillar of the constitution itself.
The chief concern of the Antifederalists was that the new federal government would exceed the limited powers delegated to it and begin usurping power they wished to remain at the state or local level, where they could more directly influence how that power was wielded. In other words, the federal government would acquire powers without the consent of the governed. The 20th century proved them prescient.
When the Court overturned Roe v. Wade in its Dobbs decision, it did return the power to regulate abortion back to the states, but only in the most transitory manner.
Roe had relied upon two 20th century reinterpretations of the Fourteenth Amendment. The first greatly expanded the meaning of the word “liberty” as it is used in that amendment. Specifically, the 14th orders that, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Prior to the Fourteenth Amendment and for many decades afterward, the meaning of the word “liberty” in this context, whether in the U.S. Constitution or the various state constitutions which virtually all contained the same or similar language, was understood to refer to freedom from incarceration. The clause of the Fifth Amendment from which the language was taken was written to protect criminal defendants from being executed, incarcerated, or fined (deprived of life, liberty, or property) before having the benefit of due process of law, generally a jury trial.
Now, to some libertarians, a more expansive interpretation of the word “liberty” can only be a good thing. They miss the proverbial forest for the trees.
Freeing the definition of liberty from this limited sense made virtually any state law liable to review by federal courts. In effect, it gave that power to the federal government that was rejected by the states at the constitutional convention literally dozens of times, the last time unanimously.
James Madison had wanted Congress to have this power and asked for a vote on it throughout the convention of 1787. So strenuously did the delegates object that even Madison’s own state of Virginia voted against it near the end of the convention. That the federal government could assume this power merely through a different branch makes a mockery of consent of the governed.
The other doctrine at issue in Roe is known as the “Incorporation Doctrine.” This theory suggested that the Fourteenth Amendment did not only apply the few clauses explicitly cited from the Fifth Amendment to the states, but “incorporated’ the entire U.S. Bill of Rights to the states. Thus, if a state law were found to violate the First Amendment to the U.S. Constitution, the federal Supreme Court could strike down the state law as unconstitutional.
Prior to the Fourteenth Amendment and for many decades after it was ratified, it was understood that the Bill of Rights only applied to the federal government. This is why every state, even those whose constitutions were ratified after the Fourteenth Amendment, contained their own bills of rights, prohibiting the same types of infringements – against free speech, the right to bear arms, punishment without due process, etc. – as the U.S. Bill of Rights prohibited to the federal government.
There would be no reason, for example, for Wyoming, not admitted to the Union until 1890, to have a provision in its state constitution saying, “The right of citizens to bear arms in defense of themselves and of the state shall not be denied” if the Second Amendment to the U.S. Constitution protected the same right against infringement by the state government. The reason Wyoming included that language was that it recognized the Second Amendment did not protect individuals against infringement of the right by the state government.
In reviewing the various state constitutions, one finds they all have their own versions of the various prohibitions on government power found in the U.S. Bill of Rights. Most protect the right to keep and bear arms, but many of those protections are worded differently from the Second Amendment, reflecting the particular state’s preferences in how they wanted their government restricted from infringing this right. Six states, including New York, do not have a protection of the right to bear arms in their constitutions.
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These are all clear indications that the framers of state constitutions understood the U.S. Bill of Rights only restricted the federal government and had no bearing upon their own state governments.
As in Chevron, SCOTUS overturned neither the spurious interpretation of the word “liberty” in the Fourteenth Amendment nor the Incorporation Doctrine related to same. They merely found a way to argue neither applied to the regulation of abortion.
In fact, the Court made explicit use of the Incorporation Doctrine in striking down a New York State gun law it said violated the Second Amendment. Conservatives liked this decision because it protected the right to keep and bear arms under specific conditions. But in the great scheme of things, it only further cements the federal government’s usurpation of a power – to regulate the possession of weapons – that was previously denied to the federal government and left wholly in the hands of the states by the Second Amendment itself.
There are some who argue hacking at the branches is a good thing, that a full century of bad precedent can’t be reversed all at once. But each of these poisonous doctrines was adopted all at once, in what at the time were radical expansions of federal government and executive branch power.
Why can’t a blow for freedom be struck just as radically as a blow for tyranny?
This originally appeared on Tom Mullen Talks Freedom.
