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In late June 2024, the U.S. Supreme Court decided the case of Loper Bright Enterprises v. Raimondo (1). In that case, commercial fishermen based in New Jersey sued the U.S. Secretary of Commerce for having overstepped its regulatory mandate when the National Marine Fisheries Service dictated that all commercial fishermen must pay for an onboard monitor to oversee the legality of their catches. At $700 per day per monitor, this was a major regulatory burden for small fishing enterprises.

The case was all going the agency’s way until the Supreme Court found that the agency had exceeded its mandate. This was a significant departure from previous court decisions that had abdicated judicial authority in favor of every regulatory agency from the SEC to the FDA, all of whom have been running amok with their own rulemaking and no real oversight by anyone, not by Congress, not by the President, and certainly not by the courts, as long as the regulatory agencies’ decisions were “reasonable.” This routine judicial deference to the administrative state was a doctrine known as “Chevron deference” after the 1984 case of Chevron, U.S.A., Inc. v. Natural Resources Defense Council. The Supreme Court had chipped away at this doctrine over the years, but the Loper Bright decision was the final nail in the coffin of regulatory lawmaking.

Meet the Powerful Fourth Branch of Government

In the American system of government, there is a legislative branch authorized by Article I of the U.S. Constitution, there is an executive branch authorized by Article II, and there is a judicial branch authorized by Article III. Period. One can search all one wants for the Constitution’s similar authorization of a separate administrative bureaucracy, but the search will be in vain. Ostensibly, this fourth branch of government is an outgrowth of and reports to the executive branch.

And, yet, over many decades, the administrative agencies of the executive branch have morphed into a gigantic, unelected legislative body all their own and truly accountable to no one. As Jeff Deist, president of the Mises Institute, says, “we are getting an entrenched bureaucratic class with politics largely a side-show.”

With the President’s enormous workload, it is extremely difficult if not impossible for him to keep track of all that the agencies do. Peter J. Wallison, author of Judicial Fortitude, notes that “only a tiny few ‘major rules’ are even brought to the attention of OMB [Office of Management and Budget] (which is at least within the Executive Office of the President), and fewer still are rules that might ever be brought to the president’s attention” (2).

This lack of accountability is understandable when we realize that U.S. regulatory agencies churn out on average 3,000 new rules every year, and “have issued 101,380 rules since 1993 …. In 2017 Congress enacted 97 laws, but the agencies issued 3,281 rules” (3).

Supreme Court & Congress Give Their Powers Away

The U.S. Constitution is clear: Only Congress may legislate, and it may not delegate its law-making power—neither to the President nor to anyone else. As recently as 1935, the High Court stuck to this position when presented with the issue (4). Unfortunately, under pressure from President Franklin Roosevelt, the Court soon backed away from its principled and constitutional stand; and that was reflected in its decision in United States v. Carolene Products Company, 304 U.S. 144 (1938), where it said that a regulatory law will not be struck down as unconstitutional if it has a “rational basis.”

So, despite the fact that regulatory agencies were clearly doing what is in the nature of government to always do—expand and accumulate increasing power—the Federal courts retreated from their constitutional duty to decide what the law is and instead allowed the regulatory agencies to craft whatever whimsical and unchallengeable rules they wanted so long as there existed the merest rational basis for them.

This hand-off of power to agencies was not just the fault of the Federal courts, it has also been the fault of Congress itself. For Congress of late has taken the coward’s way out when passing major legislation. It will pass laws that paint broad-brush noble goals for which the legislators may take credit, while leaving all of the messy, unpopular details for the administrative agencies to work out and be blamed for later. One example is the Clean Air Act, where Congress—to much applause—basically told the EPA to clean the air to certain levels but left almost all of the dirty work (such as strict emission standards) for the agency to handle.

The Chevron Case

In 1984, the U.S. Supreme Court heard the case of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, where the oil company Chevron argued that an ambiguity in the Clean Air Act enabled the EPA to essentially fill the gap in the law with whatever “reasonable” interpretation the EPA wanted, in this case, one favorable to Chevron (5). Unfortunately for freedom from arbitrary bureaucratic rule, the Court unanimously decided that when the enabling statute is ambiguous, judges should defer to Federal agencies’ interpretations of their own powers if the interpretation was “reasonable” (6). When the statute is not ambiguous, though, the agency is not entitled to deference (7).

This judicial policy became known as the Chevron doctrine, or “Chevron deference” due to the courts’ abandonment of their constitutional role of legislative interpretation. Thenceforth, encouraged by “Chevron deference,” the unelected bureaucratic state increasingly issued the rules, interpreted the rules, and enforced the rules, becoming exactly what James Madison described as the “very definition of tyranny” where all powers are concentrated in one set of hands.

For decades, one judicial decision after another fueled the growth and power of the unelected bureaucracy. Deist’s lament that “politics is largely a side-show” has come vividly true as even State courts have largely followed the Chevron doctrine. In California, for example, an appeals court held that a medical board’s decisions should only be overruled if they were “palpably arbitrary” (8), while in Maryland, the State “review[s] an agency’s decision ‘in the light most favorable to the agency,’ since their decisions … carry with them the presumption of validity” (9). And the U.S. Food and Drug Administration (FDA) is only rarely reined in by the courts and even then given great deference as the “publicly spirited body” that it pretends to be.

Raining on the Parade

Over many years, Justices Clarence Thomas and Neil Gorsuch, and others, have realized that letting unelected bureaucrats engage in what is essentially unaccountable legislation is anti-democratic, has imposed major unnecessary regulatory costs on Americans, and has violated the obligatory constitutional separation of powers. Chevron was simply bad law.

Over the years, a few cracks in the Chevron doctrine had appeared here and there, but came more greatly apparent in the 2013 case of City of Arlington v. FCC (10). In this case, a Supreme Court majority, in ruling in favor of the FCC, upheld the Chevron doctrine, but Chief Justice Roberts wrote a strong dissent, joined by two other justices, that challenged Chevron and ended emphatically with, “We do not leave it to the agency to decide when it is in charge” (11).

Five years later, in an illegal-immigrant-removal case called Pereira v. Sessions, Justice Kennedy (now retired) concurred in the 8-1 majority opinion, stating for himself and other justices that “[i]t seems necessary and appropriate to reconsider, in an appropriate case, the premises that underlie Chevron and how courts have implemented that decision” (12).

That appropriate case came in 2022, when the Supreme Court in West Virginia v. EPA invoked the “major questions doctrine” to rule that the Clean Power Plan issued by the Obama administration was unlawful. The major questions doctrine essentially states that for any important or major governmental decision—such as mandating a fundamental change in power sources to fight climate change—agency regulations alone are not enough; Congress must weigh in and specifically legislate on the matter at issue.

As the New York Times reported, “[i]n a full-throated 19-page concurring opinion, Justice Neil M. Gorsuch, joined by Justice Samuel A. Alito Jr., elaborated on what the chief justice had written. ‘When Congress seems slow to solve problems, it may be only natural that those in the executive branch might seek to take matters into their own hands,’ Justice Gorsuch wrote. ‘But the Constitution does not authorize agencies to use pen-and-phone regulations as substitutes for laws passed by the people’s representatives’” (13).

An End to Regulatory Dictatorship?

While the West Virginia case did not eliminate the Chevron doctrine and therefore one of the pillars of the Administrative Super-State, the Court’s ruling shaved away much of its power (14). However, what the capstone Loper Bright decision did two years later was terminate the Chevron doctrine entirely (15). This dramatic step reins in these anti-democratic and unlawful extensions of government, and acknowledges that interpreting statutes should be left to the courts.

As Chief Justice Roberts, who wrote the Court’s majority opinion, said, “Perhaps most fundamentally, Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do.”

The majority opinion importantly continued, “Chevron is overruled. Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the [Administrative Procedure Act] requires ... [C]ourts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.”

So, the reign of virtually unlimited discretion by bureaucrats to interpret laws in any way that they wish is finally at an end. It is also time for Congress to learn how to craft legislation more artfully and with less ambiguity that would require the courts or the agencies to have to fill in the blanks.

Most challenges to agency rulings are brought within the purview of the U.S. Court of Appeals for the D.C. Circuit, which these days is also one of the most pro-government courts of appeal. So, it is possible that the decisions out of that Federal circuit might still mirror agency rulings.

The Bottom Line

In the health and medical fields, we have been confronted with an intransigent and even hostile FDA, which along with its allies in Congress, has made no secret of its hostility to dietary supplements and any natural remedies or practices that challenge the dominant allopathic medical paradigm of disease-care. The FDA has shown itself to be a rogue agency that ignores the clear wording of the Dietary Supplement Health and Education Act of 1994 (DSHEA) by issuing rules, regulations, and guidelines that flaunt congressional intent and stifle our freedoms, all without any clear benefit except to the FDA’s handlers, the pharmaceutical industry. Now, with the Loper Bright decision, these arbitrary and inequitable agency edicts can be more easily challenged and will be subject to stricter review by the courts.

The biggest threat to our freedoms comes from the unelected bureaucracy, which thinks of itself as being above the law and able to do whatever it wants. Loper Bright lets the regulatory agencies now know that there is a new Sheriff in town and he won’t be looking the other way while they play their power games.

References

1. Loper Bright Enterprises, et al. v. Raimondo, Secretary of Commerce, et al., Slip Opinion, June 28, 2024, at https://adfmedialegalfiles.blob.core.windows.net/files/LoperBrightEnterprisesSCOTUSRuling.pdf. A similar appeal, Relentless, Inc. v. Commerce Department was argued and decided at the same time.
2. Peter J. Wallison, Judicial Fortitude – The Last Chance to Rein in the Administrative State, Encounter Books, 2018, p. 143.
3. Ibid. at p. xxi, citing Clyde Wayne Crews, Jr., Ten Thousand Commandments: An Annual Snapshot of the Federal Regulatory State – 2018 Edition, Competitive Enterprise Institute, April 19, 2018, p.5.
4. Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), and A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).
5. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
6. Ibid. at 844.
7. For an excellent discussion of judicial deference, please see “Chevron deference (doctrine) – The Administrative State,” Ballotpedia.org, undated, at https://ballotpedia.org/Chevron_deference_(doctrine).
8. Griffiths v. Superior Court of Los Angeles County, 96 Cal App 4th 757, 117 Cal Rptr 2d 445, 458 (2002).
9. State Board of Physicians v. Rudman, 185 Md App 1, 968 A2d 606, 615 (2009).
10. City of Arlington v. FCC, 569 U.S. 290 (2013).
11. Ibid. at 327.
12. Pereira v. Sessions, 585 U.S. ___, 138 S.Ct. 2105 (2018)(J. Kennedy, concurring).
13. Adam Liptak, “Supreme Court Strips Federal Government of Crucial Tool to Control Pollution,” The New York Times, June 30, 2022, at https://www.nytimes.com/live/2022/06/30/us/supreme-court-epa.
14.  For an excellent article on this case, see James Burling, “Apocalypse not: What West Virginia v. EPA really means,” Pacific Legal Foundation, July 5, 2022, at Apocalypse not: What West Virginia v. EPA really means | Pacific Legal Foundation.
15.  See, e.g., Steve Bradbury, “Sayonara, Chevron,” The Daily Signal, April 15, 2024, at https://www.dailysignal.com/2024/04/15/sayonara-chevron/.