b'THIS MAY BE THEW hilealmostalleyesbranch have morphed into a gigantic, un- unchallengeablerulestheywantedso have been focused re- elected legislative body all their own andlong as there existed the merest rational cently on the U.S. Su- truly accountable to no one. As -eff Deist,basis for them.premeCourtsDobbspresident of the Mises Institute, says, weThis hand-off of power to agencies was SUPREME COURTSv. Jackson Womens Health Organiza- are getting an entrenched bureaucraticnot just the fault of the Federal courts, it tion decision overturning the pro-abor- class with politics largely a side-show. has also been the fault of Congress it-tion Roe v. Wade case and on the NewWith the Presidents enormous work- self. For Congress of late has taken the oUN 6tate 5ifle3istol Association load, it is extremely dicult if not im- cowards way out when passing major MOST IMPORTANTcase arming the 6econd Amendmentpossible for him to keep track of all thatlegislation. It will pass laws that paint right to carry arms in public in Newthe agencies do. Peter J. Wallison, authorbroad-brush noble goals for which the York State and elsewhere, the real piv- of Judicial Fortitude, notes that only alegislators may take credit, while leaving DECISION THIS YEAR otal Supreme Court case so far this yeartiny few major rules are even broughtall of the messy, unpopular details for the hasbeenthefarless-noticedcaseofto the attention of O0B Oce of 0an- administrative agencies to work out and West Virginia v. EPA. In that case, theagement and Budget] (which is at leastbe blamed for later. One example is the State of West Virginia sued the U.S. En- within the Executive Oce of the 3resi- Clean Air Act, where Congressto much vironmentalProtectionAgency(EPA)dent), and fewer still are rules that mightapplausebasically told the EPA to clean forhavingoversteppeditsregulatoryever be brought to the presidents atten- the air to certain levels but left almost all mandate when the E3A, in its effort totion. 1 of the dirty work (such as strict emission :esW VirJinia v. (3$ reduce greenhouse gas emissions dictat- This lack of accountability is under- standards) for the agency to handle.ed that West Virginias coal-fired plantsstandable when we realize that U.S. reg-generating electricity for the power gridulatory agencies churn out on averageThe Chevron CaseBY SCOTT C. TIPS, J.D. must be transitioned over to renewable3,000 new rules every year, and have is- In 1984, the U.S. Supreme Court heard sources such as wind and solar. sued 101,380 rules since 1993 . In 2017the case of Chevron, U.S.A., Inc. v. Nat-The case was all going the EPAs wayCongress enacted 97 laws, but the agen- ural Resources Defense Council, where until it suddenly and finally hit the wallcies issued 3,281 rules. 2 the oil company Chevron argued that an with the U.S. Supreme Court deciding inambiguity in the Clean Air Act enabled June 2022 that the EPA had oversteppedThe Supreme Court &the E3A to essentially fill the gap in the its mandate. This is significant and hasCongress Give Theirlaw with whatever reasonable interpre-enormous implications for every regula- Powers Away tation the EPA wanted, in this case, one tory agency from the SEC to the FDA, allThe U.S. Constitution is clear: onlyfavorabletoChevron. 4 Unfortunately of whom have been running amok withCongress may legislate, and it may notfor freedom from arbitrary bureaucratic their own rulemaking and no real over- delegate its law-making powerneitherrule, the Court unanimously decided that sight by anyone, not by Congress, not byto the President nor to anyone else! Aswhen the enabling statute is ambiguous, the President, and not by the courts. recently as 1935, the High Court stuckjudges should defer to Federal agencies to this position when presented with theinterpretations of their own powers if the Meet the Powerful Fourthissue. 3Unfortunately, under pressure frominterpretation was reasonable. 5When Branch of Government President Franklin Roosevelt, the Courtthe statute is not ambiguous, though, the IntheAmericansystemofgovern- soonbackedawayfromitsprincipledagency is not entitled to deference. 6ment, there is a legislative branch autho- and constitutional stand; and that was re- This judicial policy became known as rized by Article I of the U.S. Constitution,pected in its decision in United States v.the Chevron doctrine, or Chevron def-there is an executive branch authorizedCarolene Products Company, 304 U.S.erence due to the courts abandonment byArticleII,andthereisajudicial144 (1938), where it said that a regulatoryof their constitutional role of legislative branch authorized by Article III. Period.law will not be struck down as unconstitu- interpretation. Thenceforth, encouraged One can search all one wants for thetional if it has a rational basis. by Chevron deference, the unelected Constitutions similar authorization of aSo,despitethefactthatregulatorybureaucratic state increasingly issued the separate administrative bureaucracy, butagencies were clearly doing what is in therules, interpreted the rules, and enforced the search will be in vain. Ostensibly, thisnature of government to always do q ex- the rules, becoming exactly what -ames fourth branch of government is an out- pand and accumulate increasing power0adison described as the very definition growth of and reports to the executive the Federal courts retreated from theirof tyranny where all powers are concen-branch. constitutional duty to decide what thetrated in one set of hands.And, yet, over many decades, the ad- law is and instead allowed the regulatoryFordecades,judicialdecisionafter ministrativeagenciesoftheexecutiveagencies to craft whatever whimsical andjudicial decision fueled the growth and H EALTHF REEDOMN EWS /S UMMER2022 23NHF_Summer40-2_2022_Linda_08-09-2022.indd 23 8/10/22 11:10 AM'