OPINION:
The June 28 Supreme Court ruling to overturn the 1984 Chevron decision is a win for restoring limited government and representative democracy. It also marks an important step in the fight to check and balance the administrative state. For 40 years, “Chevron deference” has empowered federal agencies — staffed by unelected bureaucrats — to exert enormous control over Americans’ lives.
This ruling returns legislative authority to Congress and reestablishes the separation of powers. But the fight is not over. Congress must take action to ensure radical leftists are unable to undo this hard-fought victory, and former President Donald Trump’s reelection this fall will be critical in the ongoing fight to dismantle the regulatory state.
The Constitution grants Congress — and Congress alone — the authority to legislate. Since the original Chevron ruling four decades ago, Congress has been permitted to skirt these responsibilities and pass off the burden of writing clear and descriptive legislation. As a result, federal agencies were given the power to “fill in” legislative gaps and often make up rules without statutory authority — granting them enormous power to overreach and overregulate.
Not only did this erode our system of checks and balances, but it also created a “recipe for instability,” as Justice Neil Gorsuch has previously noted. When administrations change hands every four to eight years, incoming agency staff are essentially given free rein to rewrite or scrap regulations written by the previous administration. As Justice Gorsuch said, “Each new administration can come in and undo the work of a prior one.”
This created significant confusion for industry players and the public alike. By limiting the rulemaking authority of federal agencies, the Chevron decision will create legislative and regulatory stability, force Congress to write clearer laws and ensure that rulemaking authority is restricted to statutes authored and voted on by Congress. It will also reinforce that our government is responsible to the voters and strengthen our system of checks and balances.
This ruling is a victory and an important first step in our fight for limited government, but Congress still has work to do. For years, radical leftists have threatened to pack the court to reverse the many historic Supreme Court rulings made since constitutionalists regained the majority. Undoubtedly, reversing last month’s Chevron decision would be at the top of their list.
Congress can prevent this from happening by passing the REINS Act without delay. The REINS Act would require congressional approval for every new “major rule” proposed by federal agencies. “Major rules” are defined as any federal rules or regulations with an estimated annual cost of at least $100 million. The bill would also allow Congress to block “nonmajor rules” through a joint resolution. This legislation would force Congress to do its job and further curtail the power of federal agencies.
Since President Biden took office, bureaucrats under his watch have enacted regulations costing taxpayers $1.64 trillion. The REINS Act would provide much-needed oversight, saving American families and businesses millions of dollars each year and prohibiting federal agencies from enacting burdensome regulations that stifle economic growth and make life harder for the average American family.
The fight does not end with Congress, however. When Mr. Trump is reelected in November, he should take immediate action to further restore freedom in the administrative state. He made great headway as president by issuing the “Two for One” executive order, which required repealing two federal regulations every time a new one was implemented. Mr. Trump also signed a historic order implementing a “Regulatory Bill of Rights” that outlined “principles of fairness in administrative enforcement and adjudication.” In other words, this executive order ensured that due process protections were respected in situations where individuals or small businesses may have violated federal regulations.
Unsurprisingly, Mr. Biden repealed both of these orders. On the first day of Mr. Trump’s second term, he should immediately reissue both. Mr. Trump should also go one step further by imposing a separation-of-powers construct on administrative agencies. This would require agencies to separate their executive, legislative and judicial functions into different entities. Enforcement functions would be housed under one agency and rulemaking under another.
Adjudication would reside entirely with the courts. This new construct would ensure that no one agency is in charge of all three: making a rule, enforcing it and adjudicating its enforcement. In effect, this would ensure that no one agency has too much power and would provide another system of checks and balances. When it comes to the administrative state, the more oversight and checks and balances, the better.
The third order of business on Day One is simple, but perhaps the most important: Mr. Trump should immediately issue an omnibus rule to repeal all the wasteful, burdensome and expensive regulations instituted by Mr. Biden and his bureaucrats.
The recent Chevron decision was an important one, no doubt. This constitutionalist Supreme Court has made important progress toward dismantling the regulatory state, protecting individual freedoms and promoting the principles of limited government that our country was founded on.
By overturning Chevron, the court has reaffirmed congressional authority and dealt a blow to bureaucrats who previously wielded arbitrary and undue power over the lives of the American people. Unfortunately, the administrative state is vast and entrenched, and this ruling alone does not go far enough. Congress must take action quickly to reinforce the sentiment behind the Chevron decision by passing the REINS Act.
Mr. Trump’s reelection this fall will be the final nail in the coffin of the unaccountable administrative state. With the former president back in the White House, the war against federal regulations will pick up where it left off, and the American people will be better for it.
• David McIntosh is president of the Club for Growth, the leading advocate for economic liberty.
Please read our comment policy before commenting.