Chevron Doctrine Overruled
As a nation, we are still far removed from actual constitutional self-government. Our modern progressive United States government is more German than it is American.
By now, most Americans have heard or read that the Supreme Court two days ago overruled the ridiculous Chevron doctrine.
In the case of Loper Bright Enterprises v. Raimondo, decided on June 28, 2024, Chief Justice John Roberts concluded his majority opinion with clear, simple language: “Chevron is overruled” (p. 35).
In commenting on this case, I too want to clear: The majority opinion in Loper—overruling Chevron—is a step in the right direction.
For those who cherish freedom and respect the Constitution—for those who prefer citizens governing themselves over being ruled arbitrarily by unelected, unionized bureaucrats—the Loper opinion is a victory. It is a reason to celebrate.
At the same time, I am writing to encourage perspective and a sober assessment of what the Loper opinion means—and doesn’t mean—in the context of the larger fight to secure a future of freedom in the United States by defeating progressivism and the progressive administrative state.
As a nation, we are still far removed from actual constitutional self-government. Our modern progressive United States government is more German—more fascist—than it is American.
Yet, I am seeing multiple headlines and social media posts in which conservatives gleefully announce that with the Court’s opinion in Loper, the administrative state has been gutted, dealt a death blow, or fatally undermined.
These are overstatements, gross exaggerations. For those of us who aim to transform the United States into a regime of liberty, it’s important to understand why.
The Administrative State
I have been studying the philosophic origins of progressivism and the creation and expansion of the administrative state for three decades. I am quite aware that makes me a nerdy geek—or a geeky nerd—because most ordinary Americans do not spend time studying these subjects.
I will do my best, therefore, to explain the administrative state, the Chevron doctrine, and what this recent Supreme Court opinion means, in simple terms that my fellow citizens can easily follow. Let us begin with the basics:
PROGRESSIVISM is a school of thought that emerged in the 19th century—first in Germany, and then imported into the United States—and later became a cultural and political movement.
Politically, progressivism aims to replace citizens with subjects and a constitutional government of limited powers with a bureaucratic government of unlimited powers.
Progressivism was inspired by the successes of modern technological science. The basic progressive political reasoning goes like this: If unelected, professional engineers can design better watches, trains, and factories, then why can’t unelected, professional engineers design a better society, too?
Progressive politics views human society as nothing more than a technical, engineering problem to be solved by technical, scientific means, including extensive economic central planning and social engineering.[1]
Political progressivism requires replacing constitutional government of limited and separated powers with an expansive administrative state that combines all political powers into regulatory-administrative agencies.
THE ADMINISTRATIVE STATE is the combination of numerous regulatory government agencies. The hallmarks of these agencies—what make them part of the administrative state—is that they employ unelected, usually unionized bureaucrats, most of whom have the equivalent of life tenure.
It’s nearly impossible for an unelected government bureaucrat to be fired; in rare instances when a bureaucrat is fired, he or she simply gets another government job within a different government agency.
Another hallmark of the administrative state is that unelected bureaucrats issue regulations—in a manner similar to kings issuing edicts—that have the full power of law in courts, even though regulations are not laws.
Anyone who has ever seen the classic Schoolhouse Rock cartoon knows how a bill becomes a law: A bill is passed by a majority of votes in both chambers of Congress and then, typically, is signed into law by the President.
When the EPA or OSHA, or any other regulatory agency, issues a rule or regulation, none of those things happen. The whole process described by that memorable Schoolhouse Rock jingle is ignored.
Furthermore, anyone who has read the first sentence of the United States Constitution, following the Preamble, knows that “[a]ll legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
There is no legislative power vested in the EPA, OSHA, or any other regulatory agency by the Constitution. And, We The People, through our Constitution, gave no power to members of Congress to delegate legislative power to regulatory agencies.
Each time members of Congress create and authorize agencies to issue regulations that have the power of law, they do so without our permission.
Yet, they do it anyway. They’ve been doing it, repeatedly, for more than a century.
Every federal regulatory agency that exists today was created by an act of Congress. Congress passes a law that vaguely identifies some problem—such as unclean water, unfair labor practices, or unsafe working conditions—and creates a regulatory agency charged with issuing and enforcing regulations to solve the vaguely identified problem.
Occasionally, there are disputes about whether the powers exercised by a regulatory agency are actually authorized by the statutory law that created the regulatory agency. This is where the Chevron doctrine has proven of great value, for four decades, to bureaucrats, regulators, and unelected government employees looking to spend other people’s money and control other people’s property and businesses.
What Is Chevron?
The Chevron doctrine, or Chevron deference, originates from the 1984 case Chevron U.S.A. v. Natural Resources Defense Council. In an opinion written by Justice John Paul Stevens—a Republican who called himself “conservative” and was nominated for the Supreme Court by Republican President Gerald Ford—the Supreme Court held that when there is ambiguity about the scope of power Congress granted to a regulatory agency, a court should defer to the opinion of the regulatory agency in question.[2]
In essence, to the question "What powers does a regulatory agency have?", the Supreme Court answered: "Whatever powers the regulators within the agency say they have!"
Imagine the following scenario: Your business had a few good, profitable years. Then, business slowed down. For the past 18 months, your business has been losing money, lots of it. You’re desperately looking for ways to slow the bleeding. You are trying to minimize costs. You are trying to drum up new business and increase revenues. You’ve had to lay off some employees, and you are praying you don’t have to lay off any more.
Right then, bureaucrats from the Occupational Safety and Health Administration (OSHA) show up. They demand that you either do an entire rebuild on one of your main physical structures, or they will shut down your business. And you don’t have the capital right at the moment to do a major rebuild. You are using the little capital you have to keep your business afloat during these terrible times.
Or, suppose it’s the Environmental Protection Agency (EPA) that shows up and imposes on your business a giant fine that you cannot afford.
In either case, you’re in a miserable predicament. It’s unclear if you can keep your business going without being fined or sued by regulators. Add the fines and lawsuits and compliance costs, and there’s no way. Your business, upon which your whole family depends, is going down.
Imagine further that, with the help of some lawyers, you discover that the compliance OSHA is demanding is far outside the scope of power that Congress granted to OSHA in the Occupational Safety and Health Act of 1970, the federal statutory law that created OSHA (and was signed by Republican President Richard Nixon).
Or, those same lawyers explain that the fine imposed by the EPA is outside the powers delegated to the EPA by President Nixon’s executive order—Reorganization Plan No. 3—which created the EPA. (Republican Richard Nixon was quite the friend of the administrative state, eh?)
You sue OSHA, or the EPA, or another agency if it’s a different scenario. The question that comes before the court is: Are the powers being exercised by OSHA, the EPA, or another regulatory agency, authorized by the legislation that created the agency?
If a court finds that the language in the legislation is ambiguous or unclear, the court looks to the regulatory agency to answer the question. The court defers to the regulators. The court effectively says: “Hey, regulators, are you empowered by law to do the things you do to business owners and property owners?”
The regulators then respond: “Of course we are! Yes. We’ve studied the law carefully—we are experts!—and we have found that the law authorizes us to exercise the power and control over citizens that we exercise.”
That is Chevron deference. That is the Chevron doctrine. It is one of the peak absurdities of the modern progressive administrative state. It is wonderful that the Supreme Court finally struck it down last week in the Loper case, even though it did take forty years to do so.
What’s Next?
The bigger problem of the progressive administrative state, however, still remains. With the Chevron doctrine gone, there will still be questions and disputes over whether regulators are exceeding the powers Congress delegated to them—powers that Congress never should have delegated to them in the first place.
The difference is that now, rather than deferring to the regulators, judges will have the responsibility and power to determine what the law means and whether a statute authorizes a regulatory agency to regulate, control, and fine citizens and business owners.
If a judge happens to be progressive and cares more about expanding the power and control of the administrative state than he does the Constitution, the outcome will be just as bad as it was when courts asked regulators to answer the question of how much power regulators should have.
There are two possible solutions to this problem. Neither is easy. Neither is likely. But here they are:
ONE SOLUTION is to have elected members of Congress repeal past legislation and abolish the regulatory agencies that legislation created, and elect a President who will sign those repealing acts into law. This is no easy thing.
THE OTHER SOLUTION is to have the Supreme Court declare an entire regulatory agency—and the legislation that created it—to be constitutionally illegitimate. Since the New Deal of the 1930s and '40s, that has not happened. That too is no easy thing.
Yet, it could happen. It’s possible.
It’d help if current public interest law firms and many new ones start suing every federal regulatory agency, many times over, repeatedly, until the Court finds the courage to declare an entire agency to be unconstitutional.
For those looking for encouragement: Sue 'em, I say. Sue 'em over and over and over. Don't let them up for air. Don't relent. Sue unelected unionized bureaucrats, and keep suing them!
When one group sues a federal regulatory agency, another should sue the same agency, too. Then another. Then ten more. Then a hundred more. Keep regulatory agencies so busy fending off multiple, simultaneous lawsuits that they don't have time to harass business owners, property owners, and ordinary citizens who just want to be left alone.
Most members of Congress lack the courage to repeal and abolish even one of the unconstitutional agencies THEY created. Maybe—just maybe—the Supreme Court will be willing to declare one to be constitutionally illegitimate? Maybe the Court can find the courage to do what members of Congress and most Presidents are too weak, too scared, too bound by crony interests to do?
Unless and until we start to abolish unconstitutional regulatory agencies by repealing the unconstitutional legislation that created and authorized them, we will remain subjects of an unelected administrative state. We will continue to be governed without our consent—in ways that are thoroughly undemocratic and unrepublican—by unelected unionized bureaucrats who wield authority to issue and enforce regulations as if they’re laws.
Will we do it? Do we have the will to live freely, to govern ourselves, to secure a future of liberty by abolishing the progressive administrative state? It’s up to us. We are, to a large extent, the authors of our national fate. We cannot control everything, but we can control whether we will live freely or as slavish subjects.
In the meantime, the Supreme Court, in the case of Loper Bright Enterprises v. Raimondo, has done something good by overturning the Chevron doctrine. I hope you will join me in saying to the constitutionalists currently serving the Court: Thank you.
[1]Culturally, progressivism aims at the uninhibited human will, the power of each person to do whatever he or she desires to do, without any constraints. Progressivism, therefore, has come to view morality—especially sexual morality and the morality that springs from and shores up the natural family—as well as most traditions as intolerable constraints on the human will.
A man who pretends he is a woman, for example, is not free unless he can force others to pay for his penectomy (the surgical removal of his penis) and hormone treatments, until he can force others to refer to him with female pronouns such as “she” or “her.”
For cultural progressives, telling a man to accept the fact he is male by nature, encouraging adults to enjoy sex within the confines of marriage, and demanding that those who produce children responsibly raise them, are all equally unacceptable.
Instead, cultural progressives demand celebrations of transsexualism, atypical and deviant sexual practices, and abortion-on-demand, while mocking the natural family as an antiquated relic of patriarchy, hierarchy, whiteness, and religious fanaticism.
[2] The Chevron doctrine was later defended, at considerable length, by Justice Antonin Scalia, another Republican, nominated by Republican President Ronald Reagan.