Monday, the US Supreme Court announced it would take up a case that could upend the way the government does business. What I’m talking about is the doctrine of Chevron Deference. As strange as it sounds, that case encapsulates my fears about the 2024 election and the possibility of a Trump presidency.
Background
Briefly, Chevron Deference is what allows the federal bureaucracy to engage in the rulemaking process without interference from the judicial branch. The case comes from a 6-0, that’s right, a 6-0 Supreme Court majority (John Paul Stevens writing, joined by Warren Burger, William Brennan, Byron White, Harry Blackmun, Lewis Powell) called Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.
This case is one of the road to hell being paved with good intentions. The Carter EPA had set a rule on power plant emissions. The Reagan EPA changed it to make it less punitive. Note how driving up energy costs has been a centerpiece of Democrat policies for 50 years. The watermelon environmentalist group (you know, green on the outside, red on the inside) National Resources Defense Council went to court to roll the standard back to the good old Carter years. The NRDC won at the DC Circuit. The Supreme Court took on the case and ruled in favor of the Reagan Administration.
The basic rule is that if Congress delegates an issue to an executive branch agency and does not issue explicit guidance, so long as the rule the agency makes is a reasonable interpretation of the law, courts are expected to defer to the agency’s interpretation. This gives agencies the nearly unfettered authority to make law within their sphere of influence. There is no way of reining them in unless the President intervenes or there are veto-proof majorities in both houses. Yeah, I know “power of the purse,” but in the era of the omnibus appropriations bill, the ability to punish an agency financially is virtually nonexistent.
My colleagues Bonchie (SCOTUS Grants Review of Case That Will Gut the Federal Bureaucracy) and Jeff Charles (The Chevron Doctrine: Will the Supreme Court’s Ruling Protect Liberty?) have written about Chevron Deference; give them a look.
The Supreme Court has been troubled by this precedent for years but has always found ways of finessing problematic rulemaking without addressing the root cause head-on. Justice Clarence Thomas, in particular, has been a vocal critic. In 2015, writing in concurrence to an opinion by the late great Justice Antonin Scalia, Thomas said 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.” (Hat tip to SCOTUSBlog for the Thomas and Gorsuch quotes.) Chief Justice John Roberts has also expressed his doubts about blind deference to agenda-driven bureaucrats.
The Case at Hand
This new case is called Loper Bright Enterprises vs. Raimondo, and the sole issue to be decided is:
Whether the court should overrule Chevron v. Natural Resources Defense Council, or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.
This is the issue. The National Maritime Fisheries Service (NMFS) of the Department of Commerce regulates commercial fishing. One way that is done is through inspectors on fishing boats. When the monitoring cost began to bite deeply into the agency’s budget, the NMFS published a regulation requiring fishing boat owners to pay for the monitoring costs. That cost included the wages of the inspectors. The cost for that came to over $700 per day per inspector. This reduced the value of the trip by 20 percent. Not only does this look suspiciously like an agency imposing a tax without Congressional approval, but a Fourth Fifth (in my defense, I blame too much hard living when younger) Amendment “taking” violation. In addition, the agency used the money it extorted from the industry to supplement its own budget, and that is a clear violation of federal law.
2024 Conundrum
So how, you’re reasonably asking yourself by now, does this relate to President Trump, the 2024 election, and my inchoate anxieties?
The case is called Loper Bright Enterprises vs. Raimondo because Biden’s Commerce Secretary Gina Raimondo is the respondent. The regulation, in this case, the one that cut the value of a fishing season by 20 percent, was written and promulgated under President Donald Trump’s Secretary of Commerce Wilbur Ross. This regulation was conceived under the Trump Administration and imposed upon the fishing industry by the same Administration.
This incident underscores my concern about a Donald Trump candidacy and perhaps, a Trump 2.0 presidency. Trump never had an organizing philosophy beyond grievance and payback. NTTAWWT. I’m from Appalachia, so both of those impulses are hardwired in my DNA. To the extent he had policy preference, they seemed to me to be things he knew his base wanted. I’m not convinced Trump had ever considered the pros and cons of abortion before he took the oath of office. If anything, I’d bet — in his heart-of-hearts — that he was a pro-abort. But he knew where his base was and became an enthusiastic defender of life, and the first president ever to attend the March for Life. I think he had strong feelings on Israel. In areas where he was concerned, he could make positive things happen.
Generally, though, he hired disloyal garbage people to run the executive branch. They were denizens of The Swamp he railed against and actively fought any attempt to make their fiefdoms more conservative or less oppressive. The Department of Justice, the Intelligence Community, the IRS, HHS, and Defense were places that fairly screamed for reform. Still, he put people in charge who were either members of the club or who didn’t have the clout and support to do what needed to be done. While some very good, even historic, things were accomplished, 2016-2020 were largely a sh**show of infighting and leaks that pissed away a golden opportunity and may have handed the White House to Joe Biden.
I Fought the Law…
The agencies that actively sabotaged President Trump, such as the CIA, the DNI, the Justice Department, and the FBI, were not punished. They fought him every day for four years, and they won. The rot in the Department of Defense was well underway when President Trump took office. He made a little progress on occasion (see President Trump Slaps Down the #Resistance Among the Navy Brass After They Continue to Try to Persecute Chief Eddie Gallagher), but he appointed General Mark “White Rage Boy” Milley. He allowed himself to be rolled when he knew the National Guard should have been called out in DC during the summer of 2020. Read President Trump’s Alleged War With His Generals Shows How the Military Is Producing Self-Centered Careerists Not Leaders, for my take on the absolute sh**hole that Trump allowed to exist in the Armed Forces of which he was Commander in Chief. The DIE bureaucracy burrowed in under Trump. And the regulation imposing a $700 per day fee on fishermen to fund the federal bureaucracy came into being under the gaze of people he appointed to office. Fauci and Birx put the nation under a Chinese-inspired lockdown as he stood on the stage with them.
Trump fulminated against them in packed stadiums across the country, but when the dust finally settled, he was impeached twice, defeated for reelection, left office with dismal approval ratings, and handed the Democrats issues they are still using today, like January 6.
2024 Concerns
So when I see President Trump begin his campaign like this, I get concerned.
TRUMP: I am your warrior, I am your justice, I am your retribution. pic.twitter.com/W7mye3NBeO
— Wojciech Pawelczyk (@WojPawelczyk) March 25, 2023
Yes, I want a warrior. You’re damned right I want justice and retribution. My question is: Is Trump the man who can deliver?
I’ve seen nothing to indicate to me that he has learned a single thing from his last term. He’s still attracting grifters and idiots the way Velcro attracts lint (Trump Owes Us More Than an Explanation on the Kanye-Fuentes Fiasco; He Needs to Show It Won’t Happen Again) and don’t even get me started on Trump’s paid twink influencer Alex Bruesewitz, who spends half of his day making fun of Jenna Ellis’ size. He does that because that’s easier than defending the Trump 2024 campaign team that is gathering. Given Trump’s issues with all female demographics, you’d think he’d hire someone with an IQ above freezing.
When Trump had the opportunity to help, he hasn’t. He supported Ronna McDaniel to head the RNC in what should’ve been a wave year; see As Race for RNC Chair Heats up, Trump Declines to Choose Between Harmeet Dhillon and Ronna McDaniel. He is directly responsible for recruiting Herschel Walker and Mehmet Oz for key Senate seats.
If we are fortunate enough to win the White House in 2024, that man must arrive with a handpicked crew of ruthless hatchetmen who know how the agencies work and how to get rid of many people fast. He can’t permit people he appoints to cut fishing profits by 20 percent, and cause wage cuts and layoffs in that industry by writing a regulation.
OK. Here's my problem: Trump is supposedly the ONLY PERSON who can take on the swamp… but when he got to DC all he did was welcome the swamp to his inner circle and surround it with a layers of bungling idiots! Trump has great fanfare, colorful language, and a lot of bluster… pic.twitter.com/kPMw6DlSq8
— Justin Hart (@justin_hart) May 3, 2023
OK. Here’s my problem: Trump is supposedly the ONLY PERSON who can take on the swamp… but when he got to DC all he did was welcome the swamp to his inner circle and surround it with a layers of bungling idiots! Trump has great fanfare, colorful language, and a lot of bluster but the chaos and confusion is something I very, very much dislike. The end result is wreckage.
Pure Swamp: Fauci, Birx, Wray, Bolton, Mnuchin, Milley, Chao, Cohen, Sessions, Barr, Haley and Kushner
Inept & Embarrassing: Adams, Tillerson, Perry, Collins. Esper, Azar, Zinke, Farah, Kelly, Meadows, Omarosa, Scaramucci, Sessions, the Kraken, Rudy… the list goes on.
Who did he appoint that you like? DeVos (ok). Grenell (filled vacancy). Thanks for the SCOTUS judges – it was totally 100% worth it – but another term for this chaos?
I do not doubt that Trump will try to bring justice and retribution for himself because of his treatment. However, I have my doubts that a) he’s capable of doing that and b) that he will settle some scores for the rest of us. Can he bring in the talent needed to reform an Executive Branch urgently in need of it? Can he resist his impulse to engage in pointless personal attacks (like the ones he’s directing at Ron DeSantis right now (Trump Wants to Bully DeSantis out of the Race, Which Means He’s Paid Zero Attention to DeSantis)?
For all of our sakes, I hope I’m wrong about what I think a Trump 2.0 will look like. Not that it matters a whole lot because if President Trump gets the nomination, I will do everything I can to elect him despite the queasy feeling I get about what lies ahead.
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