b'power of the unelected bureaucracy. De- these anti-democratic and unlawful ex-ists lament that politics is largely a side- tensions of government. 13show has come vividly true as even StateIn the health and medical fields, we courts have largely followed the Chevron have been confronted with an intransigent doctrine. In California, for example, anand even hostile FDA, which along with appeals court held that a medical boardsits allies in Congress, has made no secret decisionsshouldonlybeoverruledifof its hostility to dietary supplements and they were palpably arbitrary, 7while inanynaturalremediesorpracticesthat Maryland, the State review[s] an agen- challenge the dominant allopathic med-cys decision in the light most favorableical paradigm of disease-care. The FDA to the agency, since their decisions has shown itself to be a rogue agency that carry with them the presumption of va- ignores the clear wording of the Dietary lidity. 8And the U.S. Food and Drug Ad- Supplement Health and Education Act ministration (FDA) is only rarely reinedof 1994 (DSHEA) by issuing rules, regu-in by the courts and even then given JreaW lations, and guidelines that paunt con-deference as the publicly spirited bodygressional intent and stipe our freedoms, that it pretends to be. all without any clear benefit except to the FDAs handlers, the pharmaceutical in-Raining on the Parade dustry.Over many years, Justices ClarenceThe biggest threat to our freedoms Thomas and Neil Gorsuch, and others,trine to rule that the Clean Power Plancomes from the unelected bureaucracy, have realized that letting unelected bu- issued by the Obama administration waswhich thinks of itself as being above the reaucrats engage in what is essentiallyunlawful. The major questions doctrinelaw and able to do whatever it wants. It unaccountable legislation is anti-demo- essentially states that for any importantis time for not just the Supreme Court but cratic, has imposed major unnecessaryor major governmental decisionsuchfor all of us to tell these rogue agencies, regulatory costs on Americans, and hasas mandating a fundamental change inWe are not questioning your authority. violatedtheobligatoryconstitutionalpower sources to fight climate change qWe are denying its existence.separation of powers. Chevron was sim- agency regulations alone are not enough; 2022 Scott C. Tipsply bad law. Congress must weigh in and specifically Over the years, a few cracks in thelegislate on the matter at issue. EndnotesChevrondoctrinehadappearedhereAstheNewYorkTimesreported,1.Peter J. Wallison, Judicial FortitudeThe Last Chance to Rein in the Administrative State,Encounter Books, and there, but came more greatly appar- [i]n a full-throated 19-page concurring2018, p. 143.ent in the 2013 case of City of Arlingtonopinion, Justice Neil M. Gorsuch, joined2.Ibid. at p. xxi, citing Clyde Wayne Crews, -r., Ten Thousand Commandments: An Annual Snapshot of the v. FCC. 9In this case, a Supreme Courtby Justice Samuel A. Alito Jr., elabo- Federal Regulatory State2018 Edition, Competitive En-majority, in ruling in favor of the FCC,rated on what the chief justice had writ- terprise Institute, April 19, 2018, p.5.3.Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), and upheld the Chevron doctrine, but Chieften. When Congress seems slow to solveA.L.A. Schechter Poultry Corp. v. United States, 295 U.S. Justice Roberts wrote a strong dissent,problems, it may be only natural that495 (1935).4.Chevron, U.S.A., Inc. v. Natural Resources Defense joined by two other justices, that chal- those in the executive branch might seekCouncil, Inc., 467 U.S. 837 (1984).lenged Chevron and ended emphaticallyto take matters into their own hands,5.Ibid. at 844.\x19.For an excellent discussion of Mudicial deference, please with, We do not leave it to the agency toJustice Gorsuch wrote. But the Consti- see Chevron deference (doctrine)The Administrative decide when it is in charge. 10 tution does not authorize agencies to useState, Ballotpedia.org, undated, at https://ballotpedia.org/Chevron_deference_(doctrine).Fiveyearslater,inanillegal-immi- pen-and-phone regulations as substitutes7.Griffiths v. Superior Court of Los Angeles County, 96 Cal App 4th 757, 117 Cal Rptr 2d 445, 458 (2002).grant-removalcasecalledPereirav.for laws passed by the peoples represen- 8.State Board of Physicians v. Rudman, 185 Md App 1, Sessions, Justice Kennedy (now retired)tatives. 12 968 A2d 606, 615 (2009).9.City of Arlington v. FCC, 569 U.S. 290 (2013).concurred in the 8-1 majority opinion,10.Ibid. at 327.stating for himself and other justices thatAn End to Regulatory11.Pereira v. Sessions, 585 U.S. ___, 138 S.Ct. 2105 [i]t seems necessary and appropriate toDictatorship? (2018)(Kennedy, J., concurring).12.Adam Liptak, Supreme Court Strips Federal Gov-reconsider, in an appropriate case, theWhiletheWestVirginiacasedidernment of Crucial Tool to Control Pollution, The New York Times, June 30, 2022, at https://www.nytimes.com/premises that underlie Chevron and hownot eliminate the Chevron doctrine andlive/2022/06/30/us/supreme-court-epa.courts have implemented that decision. 11 therefore one of the pillars of the Admin- 1\x16.For an excellent article on this case, see -ames Burl-ing, Apocalypse not: What West Virginia v. EPA really That appropriate case came in 2022,istrative Super-State, the Courts rulingmeans, Pacific Legal Foundation, July 15, 2022, at when the Supreme Court in West Virginiadid shave away much of its power. Thishttps://pacificlegal.org/apocalypse-west-virginia-v-epa-re-v. EPA invoked the major questions doc- is an important step towards reining inally-means/.24 H EALTHF REEDOMN EWS /S UMMER2022NHF_Summer40-2_2022_Linda_08-09-2022.indd 24 8/10/22 11:10 AM'