In response to: The Leviathan Has Not Been Tamed
Overturning Chevron Is a Major Victory
Editor's Note
For forty years, U.S. courts have deferred to unelected bureaucrats for the interpretation of ambiguous statutes. The principle of “Chevron deference” is the legal basis of the administrative state, the extra-constitutional rule by experts that provides the legal framework and the workaday operations of the woke regime.
Philip Hamburger, the CEO of New Civil Liberties Alliance, has been on the front lines of the legal fight against the administrative state. He views the recent decision overturning Chevron as a major victory, and sees a pattern in recent decisions asserting citizens’ rights to be heard in court that will have profound long-term effects. This is the ninth installment in a series on Loper Bright and its consequences. Read the rest of the series as it becomes available here.
How important is the decision issued in June by the Supreme Court in Loper Bright Enterprises v. Raimondo and its companion case, Relentless, Inc. v. Department of Commerce? The Claremont Institute’s Theo Wold observes that this victory against the administrative state is merely “incremental.” Although valuable, “it will not remake the administrative state or solve the post-New Deal power imbalance in the federal government.”
Being the CEO of the New Civil Liberties Alliance, which submitted an amicus in Loper Bright and litigated its companion case, Relentless, I might be expected to take issue with any such modest view of the outcome. That’s true, but not because Wold is far from the mark.
Chevron is just one of the deference doctrines protecting the power of administrative agencies. So, of course, the Loper Bright / Relentless decision is just an incremental step in a longer struggle. As an old friend who feared I was too impatient to take down the administrative state once reminded me, “Rome wasn’t burned in a day.”
But that’s not to say our victory was unimportant. On the contrary, if we consider Loper Bright / Relentless together with other victories in the past year or so, we can see something transformative — not the end of the administrative state, but the beginning of its end.
Why so optimistic? Well, consider the following decisions.
• First, Axon/Cochran (another of our cases), Corner Post, and Jarkesy signal that Americans have a right to be heard in Article III courts — real courts, with real judges — not just administrative tribunals.
• Second, the decision in Loper Bright / Relentless announces that Americans have a right to the independent judgment of the judges, not mere deference to agency interpretation. (Yes, the opinion relied on the Administrative Procedure Act and concerned only one deference doctrine, but the underlying constitutional foundations are more broadly applicable.)
• Third, Jarkesy announces that Americans have a right to a jury and that this won’t be defeated by fatuous administrative claims about “public rights.”
We thus have established the freedom to be heard in court, with the independent judgment of the judges, and with a jury. This broad repudiation of the administrative state’s judicial pretensions is profound. It’s important for each and every American.
Of course, there will be pressure from agencies to cut back on these victories; so they will need to be defended in the courts and sedulously preserved. But that does not diminish their significance.
Even more important than the particular rights protected in these cases is that they send a signal — a clear indication that the administrative state is vulnerable. For over a century, we have seen what Gary Lawson aptly calls “the rise and rise” of the administrative state. Now, it is plainly evident that that rise can be stopped, even reversed.
So, yes, this is not the end of the administrative state, and there’s much work ahead. But this is a turning point — a victory in a battle that will lead to other victories in the longer struggle. That’s what strategic litigation is all about, and having got this far, we at the NCLA intend to press ahead and win more victories.