What might go wrong in Supreme Court overturning Chevron v. NRDC

OPINION:

Wendell Arthur Garrity Jr. is not a household name in the United States, although he was a federal judge for a good portion of his life. Appointed by President Lyndon B. Johnson, he was no better or worse than most federal judges, but he did do one thing that distinguished him from his colleagues on the bench: He imposed forced busing on the city of Boston in 1974.

For those with incomplete memories, forced busing — literally shipping schoolchildren across town — was the remedy of choice for racial segregation in schools. 

At its height, it was enforced by federal judges in places such as Boston; Detroit; Richmond, Virginia; Louisville, Kentucky; Charlotte, North Carolina; Syracuse, New York, etc. 

It was, without question, the most salient dividing line in American politics (especially Democratic politics) for much of the 1970s, and the cities in which it was imposed were subject to violence and social unrest.

No less a liberal icon than the youngest U.S. senator at the time — one Joseph Robinette Biden Jr. of the border state of Delaware — described forced busing as “a liberal train wreck.”

I mention this because in all of the self-congratulatory chatter on the right about the Supreme Court’s decision in Loper Bright to outright reject and renounce Chevron deference — the legal rule of thumb that administrative agencies should be deferred to with respect to the interpretation of the rules they enforce — there has been little contemplation of what might go wrong.

Chevron v. Natural Resources Defense Council, the 1984 case in which the Supreme Court adopted this approach, was, as much as anything, a response to the experience with forced busing, in which unelected and unaccountable federal judges managed to place the nation in a state of turmoil for no purpose. There was and is nothing to indicate that forced busing helped any students, but there were obvious and clear indications of community entropy as a result of the carelessness of the judiciary.

In short, the Chevron decision was as much a result of years of disenchantment with laws made by judges, most especially forced busing as a means of remedying disparate racial outcomes in education, as anything else. That decision ushered in 40 years of rule by unelected and unaccountable bureaucrats. It may be that soon we will regret returning the power and authority to interpret statutes to unelected and unaccountable judges.

The only certain guide to statutory construction — and minimal transfer of power from the people assembled in Congress to judges or bureaucrats — is for Congress to write clear laws, preferably addressing one topic at a time, and in enough detail to hem in the worse impulses of the other two branches.

At the moment, that seems fanciful. Congress has lost whatever capacity it once had to give simple, direct and explicit instructions and, for a variety of reasons, is unlikely to regain it in our lifetimes.

Absent legislative specificity, the next best guarantee of our liberty is to increase the responsiveness and reduce the size of the federal bureaucracy. Former President Donald Trump’s attempt to expand the list of accountable members of the bureaucracy is an excellent start that needs to be matched with a steady, downward pressure on federal expenditures of all kinds. Federal judges, like members of Congress, should be subject to age and term limits.

Without these constraints, it is almost guaranteed that in a generation we will be right back in this moment, complaining about an out-of-control federal judiciary and worrying, like President Ronald Reagan, that we are in “danger of short-circuiting the electoral process and disenfranchising the people through judicial activism.”

• Michael McKenna is an award-winning columnist at The Washington Times and a co-host of the podcast “The Unregulated.”