Notes From The Front Lines Of Resisting Government Aggrandizement

Among the most famous quotes from Thomas Jefferson is this: "The natural progress of things is for liberty to yield, and government to gain ground."  And he said those words well before there was even a progressive movement, dedicated to the principle that all human problems can be solved by government experts with unlimited power and enough infinite free taxpayer dollars to spend.  Today we have thousands of these progressives strewn throughout the government agencies and the courts, all pushing for expansion of government (i.e., their own) power.  Is it even possible to resist?

One of the front lines in this battle in coming months looks to be over the concept of what is called "Chevron deference."  The name "Chevron" refers to a 1984 U.S. Supreme Court case, Chevron v. Natural Resources Defense Council.  In that case, the Supreme Court held that government agencies should be allowed broad latitude to interpret the statutes and regulations that they then administer.  You may have encountered the term in reading about the nomination of Neil Gorsuch to the Supreme Court.  While Gorsuch's judicial philosophy is thought to be very close to that of Scalia on most issues, he clearly differs dramatically from Scalia on this "Chevron deference" thing.  Here is Jonathan Adler, writing in the Washington Post on February 1:

Scalia feared an overweening judiciary that would use the power of judicial review to direct regulatory policy and supplant the policy judgments of presidential appointees. As a consequence, he was a strong proponent of the Chevron doctrine, under which courts are required to defer to reasonable agency interpretations of ambiguous federal statutes. . . .  Gorsuch, on the other hand, sees in Chevron a potential threat to the fundamental obligation of the judiciary to interpret federal statutes and “say what the law is.”  Writing separately in one recent case, Gorsuch explained that under the Constitution, as written, it is the job of “the people’s representatives” to “adapt the law to changing circumstances. '  . . .  Gorsuch warned that “Chevron seems no less than a judge-made doctrine for the abdication of the judicial duty.”  Allowing agencies to offer authoritative statutory interpretations, Gorsuch warned, threatens to transfer “the job of saying what the law is from the judiciary to the executive,” thereby inviting “the very sort of due process (fair notice) and equal protection concerns the framers knew would arise if the political branches intruded on judicial functions.”

Now, at first blush, it would certainly seem that "Chevron deference" is the ultimate unfettering of the government to enable it to expand as much as it wants, and with nothing to stop it.  Of course every agency interpretation of a statute or regulation will be in a way to give the agency itself more power!  For Exhibit A, look to the EPA under Obama, which has interpreted the term "waters of the United States" to cover every puddle and wet spot (in order to claim jurisdiction over a good half of all private land) and has determined that a colorless, odorless gas (CO2) is a "danger to human health and welfare" (in order to claim jurisdiction over the entire energy sector of the economy).  

But meanwhile, while Chevron deference hands enormous powers to the agencies, it also acts as a constraint upon the courts.  Could it be that the courts are even more dangerous than the executive agencies in expanding their own power?  Before racing too quickly to a conclusion, you might want to consider the Chevron case itself.  The case arose out of an EPA interpretation of the Clean Air Act in a way that actually reduced the number of projects that would be required to obtain an air quality permit from EPA.  Essentially, EPA said that all "sources" of pollutants within any overall project (referred to in the jargon of the time as a "bubble") would be considered as one "source," and there would therefore be no need to obtain a permit to make changes as long as the total emissions within the particular "bubble" did not go up.  This was in the early days of the Reagan administration, and the EPA Administrator was none other than Anne Gorsuch -- Neil Gorsuch's mother.  Meanwhile, the DC Circuit continued to be dominated by appointees of previous Presidents, including Jimmie Carter.  

Needless to say, the Natural Resources Defense Council sued EPA to force it to apply the more intrusive regulatory regime that had preceded.  And the DC Circuit agreed!  This was in the pre-Scalia era of statutory interpretation, when courts often looked to what they thought was the "overall purpose" of a statute in deciding how to interpret it.  Hey, this statute was intended to clean up the air!  (Notice that this method of statutory interpretation does not require any consideration of the actual words of the statute.)  Therefore, there may not be an interpretation that allows projects to proceed while only keeping the level of air pollution the same as before.  Here is how the DC Circuit stated its reasoning:

 [I]n ASARCO, Inc. v. EPA, 578 F.2d 319 (D.C.Cir.1978), the court ruled out application of the ["bubble"] concept to national new source performance standards ("NSPSs") which the Act directs EPA to set with a view to enhancing air quality. In each case the court focused on the purpose Congress envisioned for the particular program at issue. ASARCO declared the bubble concept impermissible when the congressional objective was improvement, rather than simply preservation, of existing air quality. . . .  Congress, EPA does not dispute, intended the new source review requirements to operate not simply as a quality-maintaining scheme but specifically to promote the cleanup of nonattainment areas.  We are therefore impelled by the force of our precedent in Alabama Power and ASARCO to hold that EPA's regulatory change, its employment of the bubble concept to shrink to relatively small size mandatory new source review in nonattainment areas, is impermissible.

So there!  As you may have guessed by now, the Supreme Court reversed, and thus we have the concept of "Chevron deference."  But this was only one of many circumstances of that Reagan era where the courts, particularly the DC Circuit, thought it was their business to direct agencies what to do if the court thought the agency was being insufficiently aggressive in its regulation.  The courts had become a major factor in resisting Reagan's efforts to reduce the size and impact of government.

During the Obama era, it was the opposite -- agencies aggressively seeking to expand their power, and courts often dominated by Bush appointees.  Of course, those judges "deferred" -- and government power expanded.  And now things have reversed yet again: we have new President Trump, but a DC Circuit (and most other Circuits) dominated by the appointees of the President Obama.  Will those courts be resistant to agency efforts to roll back regulation, as Trump has directed the agencies to do?  Without doubt, they will.  As of now they are constrained, at least a little, by Chevron deference.  But do you now see how we seem to have gotten ourselves onto a one-way ratchet of increasing government power (as foreseen by Jefferson)?  So long as the progressives control one or the other of the executive agencies or the courts, they can somehow keep the power of government expanding.

For the long pull, I am not a fan of deference to agencies as interpreters of statutes.  Gorsuch is right that statutory interpretation is at the core of the judicial function.  This is why appointing non-progressive judges, at all levels, is so important.  Meanwhile, maybe the Supreme Court will not get around to undoing deference until Trump gets at least a few appointments to the DC Circuit.