Chevron Dying? by Tom Reynolds
Under the 1984 SCOTUS opinion in Chevron U.S.A. v. National Resources Defense Council, if a law is ambiguous, the court must accept the executive agency's interpretation of the law if the executive branch agency's interpretation of the law is reasonable or permissible. No room for judicial scrutiny.
The Chevron decision has seriously distorted how the political branches operate; under Chevron, Executive Branch agencies become lawmakers, which is contrary to that pesky scrap of paper, the United States Constitution, which demands that only Congress can legislate.
Chevron is the reason that the ATF has been able to arbitrarily pass firearm regulations.
That may be changing, on paper at least.
The cases of two Herring fishing companies are before the Supreme Court of the United States (SCOTUS): Loper Bright Enterprises v. Raimondo and Relentless v. Department of Commerce. Why are two fishing cases of interest to 2nd Amendment defenders?
The federal Magnuson-Stevens Act, allowed the National Marine Fisheries Service (NMFS) to require herring boats to carry federal monitors to enforce of NMFS’ regulations. NMFS decided that, without any express statutory authorization, the herring boats must also pay the salaries of these monitors, estimated by the NMFS to be $710 per day. NMFS took the usual bureaucratic attitude; what are you going to do about it? Sue us?
To NMFS surprise, Loper Bright Enterprises and Relentless sued.
There is reason for us to be hopeful. SCOTUS has ruled positively against the chevron Doctrine in a similar case.
West Virginia vs the EPA was about the EPA legislating through regulation, under the Chevron Doctrine; the EPA was mandating the shutdown of coal fire power plants. The question was not whether shutting down coal plants was good or bad but whether the EPA had the power and right to move forward with regulatory mandates on such “a major question” without express congressional approval.
SCOTUS answer was a resounding no to the EPA.
Justice Neil Gorsuch, in his concurring opinion, was a resoundingly strict constitutionalist: “By effectively requiring a broad consensus to pass legislation, the Constitution sought to ensure that any new laws would enjoy wide social acceptance, profit from input by an array of different perspectives during their consideration, and thanks to all this prove(d) stable over time…Permitting Congress to divest its legislative power to the Executive Branch would dash (this) whole scheme…agencies could churn out new laws more or less at whim.”
2A defenders are hopeful these cases will mortally wound the Chevron doctrine and curtail agencies such as the ATF in its anti-2A methods. The Chevron Doctrine must be put to death.
However, that won’t necessarily solve the problem, in real life, as there is a related problem. If the federal government loses the “Herring” cases, will they have any impact, other than as paper victories?
Article VI of the Constitution states: “This Constitution…shall be the supreme Law of the Land; and the judges in every state shall be bound thereby…” But what happens to judges (and legislators and governors) who ignore the Constitution?
Answer, in most cases: nothing.
In Caetano v Massachusetts, every level of Massachusetts’ state courts ignored an existing SCOTUS ruling that clearly stated that guns did not have to be in existence when the 2nd Amendment was passed in order to be protected by 2A. Massachusetts judges openly defied SCOTUS and based their opinions on a type of gun not being in existence in 1790.
What was the judges’ punishment in Democrat controlled Massachusetts for ignoring the Constitution? Nothing!
In NY State, the legislative and executive branches ignored the SCOTUS rulings in NYSRPA v Bruen and passed the Concealed Carry Improvement Act (CCIA) which openly contradicted much of Bruen. As a result, hundreds of thousands of dollars (eventually millions) are being spent suing NY State.
We expect SCOTUS will overturn much of CCIA. If so, will there be any legal action against anyone who openly defied SCOTUS? Not in Democrat controlled NY State.
In Biden v Nebraska, SCOTUS ruled that the Biden Administration does not have authority under the Higher Education Relief Opportunities for Students Act of 2003 (HEROES Act) to establish a student loan forgiveness program that will cancel roughly $430 billion in debt principal and affect nearly all borrowers.
In response, Biden has been forgiving loans and extending repayment periods.
Can we expect an impeachment?
People need to be held responsible for violating their oaths of office.
Granted, it is also dangerous path when the executive and judicial branches start taking legal action against judges because of court decisions. This can be easily abused. The Left has little regard for our Constitution and this would open up a new path for them to destroy it. Which is is why there have been few impeachments of federal judges.
When judges, legislators and executives openly defy the Constitution, that also opens the door to abuse and some action needs to be taken. Without the threat of punishment, there is little downside to ignoring SCOTUS and the Constitution.
We have a problem that needs to be addressed. With all the legal brainpower in Washington, there must be some possible solution? Of course, there has to be the will to solve the problem.
