It’s time to defang the administrative state

Our Founding Fathers created three co-equal branches of government: legislative, executive, and judicial. But today, they are all ruled by a de facto fourth branch: the administrative state.

The Supreme Court accidentally elevated the permanent bureaucracy into a fourth branch of government with its 1984 ruling in Chevron U.S.A. v. Natural Resources Defense Council. The case established a legal doctrine known as Chevron deference, in which federal courts defer to an administrative agency’s interpretation of ambiguous statutes as long as that interpretation is “reasonable.” Agencies quickly stretched congressional ambiguity to include congressional silence on a matter, allowing them to create laws out of thin air.

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Over the years, Chevron deference has steadily empowered unelected, unaccountable bureaucrats, allowing them to legislate by fiat while undermining the role of Congress and distorting the original intent of America’s founders. At the same time, the courts themselves have abdicated their responsibility to provide scrutiny and oversight by automatically deferring to government agencies. Worst of all, because deference is given to agency interpretations rather than the actual text of the law, bureaucrats can completely alter the law’s meaning while bypassing the legislative process altogether.

For American citizens and businesses caught in the bureaucracy’s crosshairs, it can be nearly impossible even to comprehend the implications of arcane regulations or what their legal obligations may be. This lack of clarity not only hampers public participation in the regulatory process — it forces those involved to spend untold fortunes just to stay in compliance.

Having been gifted such sweeping power, it should come as no surprise that the administrative state has come to relish wielding it with impunity. With little fear of judicial reversal, government agencies stretch the boundaries of their authority with each passing day. The result is an ever-growing mountain of burdensome regulations that choke out economic growth, trample individual liberties, and stifle innovation.

It is time for this bureaucratic tyranny to end.

On several occasions, the Supreme Court has signaled openness to reexamining Chevron deference, but has yet to act. Advancing American Freedom, the advocacy organization founded by former Vice President Mike Pence, is encouraging the court to end Chevron deference and defang the administrative state.

AAF has filed an amicus brief with the Supreme Court in Loper Bright Enterprises et al. v. Gina Raimondo, a case in which a federal agency is absurdly attempting to place bureaucrats on fishing boats and make the owners pay for it. Our brief asks the court to make clear that congressional silence is not tantamount to relinquishing its legislative powers, and it is certainly not permission for a fill-in-the-blank overreach of its limited powers.

All told, AAF has brought together more than three dozen conservative organizations to file briefs in five Supreme Court cases arguing against Chevron deference in just the last year.

Our argument is simple: Congress alone has power of the purse. The Chevron doctrine, by allowing mischievous agencies to seek funds outside of the appropriations process, has exceeded its delegated powers, and we are asking the court to rein in the roving powers of unelected agencies usurping powers the Constitution grants to Congress alone.

But even if our entreaties to the Supreme Court fall short, there is still reason for hope. The House recently passed the Separation of Powers Restoration Act, which would repeal the doctrine of Chevron deference. Obviously, the legislation has little chance of passing while liberals control the Senate and the White House. But it should be a priority for the next conservative administration, along with legislation clarifying that all executive branch employees serve at the pleasure of the president.

Repealing Chevron deference is crucial to restoring the proper balance of power and upholding the principles that underpin our constitutional democracy. Our founders, in their enduring wisdom, created three branches of government. It’s time to get back to the system they created.

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Marc Wheat is the general counsel for Advancing American Freedom.