OPINION:
Americans treasure their liberty and independence. But for over a century, congressionally authorized alphabet-soup agencies have been using extralegal “authority” to issue bold, broad and unconstitutional regulatory actions that choke liberty and leave citizens with no effective recourse to reverse such actions. The Supreme Court aided and abetted this practice in a 1984 ruling, Chevron v. Natural Resources Defense Council. And now, the justices finally have a chance to right the wrong.
While Article 1 of the Constitution specifically vests “all legislative powers” in Congress, America’s lawmakers have overwhelmingly passed the buck on their single largest duty — lawmaking — to agencies. Some argue the decision-making should be left to the “experts.” Others point out that lawmakers prefer to avoid tough decisions that could adversely affect their future electoral prospects. Still others call them lazy.
Regardless of how one may view this practice of endowing agencies with the power to issue regulations carrying the force of law, there is growing agreement across the ideological spectrum that this representative government of, by and for the people has wandered too far down the road of policymaking via bureaucracy.
Today, the number of regulations issued annually far outpaces the number of newly passed statutes, and the nation’s highest court has played a direct role in the expansion of this practice.
A 1984 precedent known as Chevron Deference requires courts, except in the most egregious circumstances, to defer to agency interpretation of vague congressional statutes when a rule faces legal challenges. Today, over 90% of regulations that are challenged in the courts survive, and freedom-loving Americans suffer under agencies’ unaccountable reign.
Whether this bureaucratic tyranny comes in the form of interference with gun owners trying to exercise their God-given and constitutionally guaranteed right to self-defense or by making it financially impossible for commercial fishermen to make a living, the people are the ones to suffer. The court must reverse this tide, as their precedent has only emboldened agencies and the executive branch.
Under the Chevron precedent, the courts are abdicating their constitutional responsibility to interpret and apply the law to cases, ceding that responsibility to executive branch agencies. Thus, Chevron undermines the proper separation of legislative, executive and judicial powers as the Framers designed it. It allows unaccountable agencies to wield all three types of powers, undermining the liberties of Americans.
Gun Owners of America has filed an amicus brief in a case that highlights how the Bureau of Alcohol, Tobacco, Firearms and Explosives has turned its authority against gun owners, gun dealers and other supporters of the Second Amendment. For example, just a few years ago, the ATF arbitrarily reclassified bump stocks (devices that enable semi-automatic firearms to discharge at a faster rate) as machine guns, making them illegal to own. This is something Congress never intended, and many readers are likely unaware that something as simple as a belt loop can be used in place of a bump stock and yield the same rate of fire.
It would seem obvious that when agencies seek to criminalize possession of a previously legal product, they should be entitled to no deference at all — the judiciary should overturn such usurpations of legislative power. Frustratingly, however, Chevron Deference has allowed this regulation to stand, hanging gun owners out to dry, just like the courts have done for so many Americans affect by regulations passed without congressional approval.
Chevron empowers agencies to serve as judge, jury and executioner — inasmuch as it allows them to make, interpret and enforce regulations with the force of law. This ignores James Madison’s clear warning in Federalist No. 47, where he argued: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
This is the reason the Supreme Court must reverse Chevron. The justices have a constitutional duty to halt the accumulation of power in the executive branch.
Congressional inaction and the empowerment of agencies to do the dirty work of restricting liberty is unaccountable to the people and contrary to our republican form of governance. The Supreme Court must rebalance how power is wielded.
• John Velleco is executive vice president of Gun Owners of America, a “no compromise” grassroots lobbying organization representing more than 2 million members nationwide. The organization has filed an amicus brief on behalf of the petitioners in this case.
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