Many people misdiagnose what is wrong with our government. In particular they tend to personalize what’s wrong with Congress. You hear the charges all the time. She’s a “socialist,” he’s “establishment,” or she’s a “globalist” and he’s a “neocon.” Most of the people who simplemindedly cling to bumper sticker monikers to define what is wrong with America frequently do so by labeling groups and individuals in Congress. But that belies the real problem. It’s not about individual ideology as much as what Congress—both parties—have done in ceding so much of their power to faceless and unelected bureaucrats ensconced inside of the federal government.
Consider what the founders wanted Congress to do. The CATO Institute’s constitutional scholar, Roger Pilon, describes the drift we have suffered since the founders predicated our system on the rule of law, limited government, and judicial restraint. In the 19th Century, Pilon observes, the rise of progressivism was accompanied by “social engineers inspired by the new social sciences,” who were confident their theories would be sufficient to “order our lives through statutory law better than we ourselves could under the common law.”
This was a radical departure from the founding vison. The first casualty was the doctrine of “nondelegation,” where one branch of government must not surrender its power to another branch, thus upsetting the balance of the separation of powers. As Congress surrendered its power to President Franklin Roosevelt to impose unprecedented New Deal government programs, an obedient court complied, no doubt wary of Roosevelt’s court-packing threats. No longer would the courts impose a judicial review that keeps all three branches in their appropriate constitutional lanes, even as one branch delegated its power to another, permitting a huge expansion in programs. As Pilon notes, this put in motion the process of “replacing the law of limited government with the politics of effectively unlimited government.”
Simultaneously two injuries have been inflicted on the American people. First is the failure to properly legislate in Congress, resulting in crafting loosely worded statutes that are left to bureaucrats to fully define. Second is the willingness of Federal courts to sustain Congress’s wrongful delegation of its lawmaking authority, thereby empowering bureaucrats to define what a law means, definitions Congress never detailed. What arose over time was the disintegration of the founder’s vision for the separation of powers. Writes Pilon:
“Following President Franklin Roosevelt’s infamous court-packing threat soon after his 1936 landslide reelection, the court began effectively rewriting the Constitution, eviscerating the crucial enumerated powers doctrine in 1937, bifurcating the Bill of Rights while crafting a bifurcated theory of judicial review in 1938, and jettisoning the nondelegation doctrine in 1943. The modern executive state was thus born.”
In sum, the courts allowed Congress to impose on us an administrative state to rule over us in a largely unaccountable manner. Until now.
For 40 years, federal courts have generally deferred to the judgment of federal agencies when it comes to interpreting laws passed by Congress, especially in writing detailed environmental and consumer workplace regulations. The basis for this deference was established in the 1984 case Chevron U.S.A. v. Natural Resources Defense Council, which requires judges to defer to a reasonable interpretation of federal agency officials charged with administering ambiguous federal laws. In the current session of the Supreme Court, the justices will review this precedent. At issue is a 2020 Trump administration program requiring Atlantic herring fishermen to permit federal monitors aboard their vessels to inspect operations and track fishing limits. The fishermen believe this is overreach. They’re right. And soon the Supreme Court will weigh in on whether or not the administrative state read more into the law than the Congress intended.
The wording of the misinterpreted law, the 1976 Magnuson-Stevens Act, does not directly authorize the government—especially bureaucrats—to force the fishing industry to pay a $700-a-day cost for onboard federal monitors. Fortunately, the requirement to pay for monitors was short-lived and ended late in 2023. The good news was the fishermen were reimbursed for all costs. The bad news is they worry the plan will resurface and expand to other types of fish, therefore the current challenge to the Chevron precedent.
Those who favor big government—on both sides of the political aisle—are nervous about the likelihood that the Courts conservative majority will overturn Chevron. They should be. Because in doing so the justices could deliver a stunning and needed blow to the Congressional malpractice of writing flimsy laws that empower the bureaucrats who interpret them to have disproportionate power over us all. And that power is very difficult for everyday Americans to contest in court given the time and legal expenses.
It’s time to make Congress end this abuse and reassert the doctrine of nondelegation. And if you want a label, try this: bureaucratic tyranny.
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