After Chevron, Conservatives Should Aim Higher
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 group quota regime.
Josh Hammer argues that the overturn of Chevron should encourage legal conservatives to act boldly, working to overturn older, more entrenched judicial errors that have enabled the rise of the present crisis. This is the third installment in a series on Loper Bright and its consequences. Read the rest of the series as it becomes available here.
For the third straight year, the U.S. Supreme Court has overturned a major progressive precedent that had long been targeted by the conservative legal movement.
In 2022, Dobbs v. Jackson Women’s Health Organization overturned the barbaric abortion regime of Roe v. Wade. In 2023, Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina overturned the “systemic racism” of race-conscious admissions programs in higher education, which were previously given legitimacy in Grutter v. Bollinger and Regents of the University of California v. Bakke. And last month, Loper Bright Enterprises v. Raimondo proved to be the demise of the administrative state-emboldening “Chevron deference,” which stems from the eponymous 1984 case.
The presidential immunity decision of Trump v. United States stole all the popular headlines, but the death of Chevron was the result this term that the conservative legal movement has long desired.
To be sure, “Chevron deference” deserved its firm rebuke. In demanding that courts defer to agencies’ “reasonable” interpretations of “ambiguous” statutes, Chevron violated both the Administrative Procedure Act text and Chief Justice John Marshall’s foundational directive, in Marbury v. Madison, that “it is emphatically the province and duty of the judicial department to say what the law is.” Our Constitution’s separation of powers and the sinews of republican self-governance are both healthier with Chevron dead.
At the same time, overturning Chevron was never my personal pet cause, as it was for so many libertarian lawyers. I have long been critical of the conservative legal movement’s “monolithic anti-administrative state cabal”: the Right’s army of libertarian-leaning lawyers, law professors, judges, and intellectuals who “obsess over regulatory issues and gutting the administrative state while having little to say when it comes to the core civilizational issues affecting sovereignty, life, religion, and human sexuality.”
It is not that Chevron was correct, or that its demise should be lamented; it is simply a matter of priorities and emphasis. That raises the obvious question: What should the conservative legal movement now prioritize?
The answer is that the movement must now set its sights on overturning Everson v. Board of Education, the 1947 case that, for the first time, interpreted the Establishment Clause of the First Amendment as effectuating a “wall of separation between church and state.” That peculiar phrase, which has no textual, contextual, or historical basis in the actual words of the First Amendment, emanates from an unremarkable 233-word letter then-President Thomas Jefferson wrote in 1802 to the Baptists of Danbury, Connecticut. It bears no relation to the actual Establishment Clause, which is best understood as a mere federalism provision.
“Separation-ism” has done tremendous cultural damage. It diminishes Christian political standing and undermines America’s own Judeo-Christian biblical heritage. It hamstrings the American church, which is the only affirmative force that, if sufficiently revived, might withstand and repel the hegemonic woke revanchism that now threatens to engulf us all. The “conservative” legal movement ought to return to prioritizing distinctly conservative concerns, which suggests a targeted effort to end the failed liberal postwar paradigm of “separation-ism” in America.
Good riddance to Chevron — and to Roe, and to Bollinger and Bakke. Those battles were hard-fought. Now, let’s set our sights higher, at a target that could be decisive in winning the war.