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Bricks Tumble from Administrative State’s Walls

The latest greatest hits at the U.S. Supreme Court further curb the excesses of the Administrative State by restoring an important aspect of the Constitution’s separation of powers and Seventh Amendment constitutional rights.


The court’s holding in Loper Bright Enterprises v. Raimondo ends "Chevron deference,” the legal doctrine under which Article III courts defer to the interpretations of federal agencies regarding the meaning of the statutes agencies administer.


"Chevron deference” has bound the judiciary from questioning unaccountable bureaucracies’ opinions—what bureaucrats say goes. This has empowered agencies to operate unchecked by the legislative or judicial branches, steadily building the Administrative State that cancels constitutional protections and legal rights.


The majority opinion in Loper Bright rests on a sounder reading of the Administrative Procedure Act. The APA recognizes the “elemental proposition reflected by judicial practice dating back to Marbury: that courts decide legal questions by applying their own judgment. It specifies that courts, not agencies, will decide ‘all relevant questions of law’ arising on review of agency action . . .—even those involving ambiguous laws—and set aside any such action inconsistent with the law as they interpret it. And it prescribes no deferential standard for courts to employ in answering those legal questions.”


U.S. House Republican leaders responded to the Supreme Court’s overturning of a rule that tied the hands of Congress and the judiciary from performing their constitutional checks and balances against the imperial executive.


“For forty years, Chevron deference has led to a massive expansion of the federal government and a reduction of Congress’[s] role in the policymaking process. Chevron upended the separation of powers between our three branches of government and is responsible for many of the burdensome regulations that stifle progress and curtail liberty. Today’s landmark decision by the Court restores the balance outlined by the Founders in our Constitution and represents the beginning of the end of the administrative state.”


Look for executive agencies being held accountable and constrained under this restoring of separation of powers.


Also, the high court ruled in Securities & Exchange Commission v. Jarkesy that "the Seventh Amendment entitles a defendant to a jury trial when the SEC seeks civil penalties against him for securities fraud.”


The majority in Jarkesy described in some detail the contrast between Article III courts and administrative proceedings that hand an agency legislative, executive and judicial powers.


Further, the SEC (and many other administrative agencies) have had the prerogative of taking someone to real court or to an in-house, quasijudicial administrative proceeding.  The court held that “[a] defendant facing a fraud suit has the right to be tried by a jury of his peers before a neutral adjudicator. Rather than recognize that right, the dissent would permit Congress to concentrate the roles of prosecutor, judge and jury in the hands of the Executive Branch.”


This cozy arrangement deprives individual rights and butchers the division of authorities the Founders constructed in the Constitution and Bill of Rights. Perhaps most chilling in the majority opinion is its description of this aspect of unbounded administrative fiat: “The Commission or its delegee also determines the scope and form of permissible evidence and may admit hearsay and other testimony that would be inadmissible in federal court” (emphasis added).


Thus, securing constitutional rights to individuals and limiting excessive administrative overreach, through these two rulings, represent victories for private property rights.


These rulings, particularly Loper Bright, follow the Supreme Court’s laudatory decisions against the EPA’s stretching the Clean Air Act in West Virginia v. EPA and similarly lassoing the EPA’s gross expansion of the Clean Water Act in Sackett v. EPA.


Steadily, SCOTUS is hauling the Administrative State in line with the Constitution’s limits on government.

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