“There are a thousand hacking at the branches of evil to one who is striking at the root.” – Henry David Thoreau

In LOPER BRIGHT ENTERPRISES ET AL. v. RAIMONDO, SECRETARY OF COMMERCE, ET AL. (“Raimondo”) the Supreme Court of the United States overturned the “Chevron deference,” a doctrine dating to the 1980s that said in judging whether a regulatory agency had exceeded the authority delegated to it by Congress, courts must defer to the agency’s interpretation of any ambiguous language in the law.

This is being decried by liberals as a crippling blow to the federal government’s ability to regulate and lauded by conservatives as a welcome return to stricter obedience to the Constitution. 

In reality, it is just more hacking at the branches by SCOTUS rather than striking at the root.

The root of the problem is Congress delegating any authority to make rules at all to the executive branch. The Constitution is clear that the legislative power is delegated exclusively to Congress, meaning any rules either prohibiting or requiring human action must be written by legislators elected for that purpose, passed by both houses of Congress, and signed by the president. Calling the rules federal agencies write “regulations” instead of laws doesn’t change anything. It’s still legislating and any person honest with himself knows this.

Congress has no constitutional authority to delegate this power to another branch of government. There is a legal doctrine older than Chevron expressing this called the “nondelegation doctrine.” SCOTUS referred to it in its decision on President Biden’s proposed Covid vaccine mandates. But rather than striking down Congress’ ability to delegate its legislative power to the executive, rampant since the New Deal, the Court merely ruled Congress can’t delegate this power too much.

Hacking at the branches.

This has been the case with all the supposedly monumental decisions by the supposedly “hard right” Court that includes three appointments made by former President Donald Trump. Presented with opportunities to confront three spurious legal doctrines from the 20^th century that allowed power to be unconstitutionally transferred to the federal government in general and its executive branch in particular, the Court has largely affirmed these doctrines, merely massaging them differently to get results conservatives like.

The problem is that if even this Court, considered extreme by today’s standards, will not fundamentally enforce the nondelegation doctrine or strike down the Incorporation Doctrine, there will never be a chance to do so again.

This is a consent of the governed issue. It is not so much a matter of whether one or another of the particular laws or powers exercised are good or bad in a vacuum. It is a matter of who is exercising the power and how they acquired it. 

Our founding document preceding even the Constitution says government derives its just powers from the consent of the governed. And no one ever consented to the federal government striking down state laws or the executive branch legislating. On the contrary, the delegates at the constitutional convention emphatically denied the former power to Congress although proposed by Madison throughout the summer. The latter power wasn’t even considered as their separation was a foundation pillar of the constitution itself.

The chief concern of the Antifederalists was that the new federal government would exceed the limited powers delegated to it and begin usurping power they wished to remain at the state or local level, where they could more directly influence how that power was wielded. In other words, the federal government would acquire powers without the consent of the governed. The 20^th century proved them prescient. 

When the Court overturned Roe v. Wade in its Dobbs decision, it did return the power to regulate abortion back to the states, but only in the most transitory manner.

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Tom Mullen is the author of It’s the Fed, Stupid and Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty, and the Pursuit of Happiness? 

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Tom