David Harsanyi of the Federalist writes that it’s not possible to defend both democracy and the administrative state.
The government shows up at your business and demands you pay the salaries of the regulators who lord over you. If you refuse, you’ll be ruined. You have little recourse. You’ve never even voted on the policy because no law implementing it exists. Bureaucrats in D.C. cooked up the idea, and a political appointee signed off on it.
That’s what Loper Bright Enterprises v. Raimondo, a case brought by New England fishermen against Commerce Secretary Gina Raimondo, is all about. It may finally end or weaken Chevron deference, which refers to a 1984 decision that inadvertently empowered the administrative state to take wide-ranging, illiberal powers over American economic life. I mean, the case of the fishermen is basically a modern reenactment of “taxation without representation.”
Yet when the Supreme Court took up oral arguments in Raimondo, the three leftist judges didn’t focus on the constitutionality of Chevron deference, but rather lamented the alleged problems of stripping government experts of their power. Here is how The Washington Post’s Ruth Marcus frames the arguments:
“But the fundamental question was clear: Who decides? From the liberal point of view: unelected judges or regulators with expertise and accountability? From the conservative vantage point: judges constitutionally empowered to say what the law is or unelected bureaucrats?”
It’s difficult to comprehend how any jurist who swore to uphold the Constitution could agree with the “liberal point of view.” Justices are “unelected” by design. It’s not a gotcha. It’s the point. And it is literally their job to “decide” the constitutionality of the laws and their implementation. Failing to do so is an abdication of their duty. Yet the contemporary left treats SCOTUS as if it were some autocratic Star Chamber for doing its job.
