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Double whammy: U.S. Supreme Court deals two decisive blows to unelected federal regulators

After forty years in the agency-policymaking wilderness, the U.S. Supreme Court signaled its clear intention to restore the balance of power to the judiciary when agency disputes with citizens are concerned.


In a landmark 6-3 ruling, the majority agreed to overturn the Chevron Doctrine—a four-decade mistake that tied the hands of the judiciary to impartially adjudicate lawsuits between agencies and citizens. Like baseball’s “tie goes to the runner” rule, Chevron Deference meant that “policymaking gaps go to agency,” which often left citizens and businesses at the mercy of unchecked agency policymaking.


In the same week, the Court issued a separate ruling aimed at the Securities and Exchange Commission’s practice of adjudicating important cases with the agency’s own hand-picked, in-house judges. The Court ruled that the practice violates a citizen’s right to a trial by jury protected under the Seventh Amendment.


Both rulings are huge wins for private citizens against federal agency overreach. The removal of Chevron means the judiciary’s thumb will no longer be planted on the agency’s side of the justice scales when a law is ambiguous. “Today, the Court places a tombstone on Chevron no one can miss. In doing so, the Court returns judges to interpretive rules that have guided federal courts since the Nation’s founding,” Justice Gorsuch wrote.


Years of Chevron deference allowed unbridled growth of agency power. In the case that sealed its fate, Loper Bright Enterprises v. Raimondo, the National Marine Fisheries Service (NMFS) determined that an agent must be present on every commercial fishing expedition to enforce compliance with all federal regulations. If the full-time presence of a federal agent wasn’t oppressive enough, NMFS required the business to pay for the regulator’s time. This would be comparable to the IRS sending taxpayers a bill for an agent’s time after an audit, whether or not they had done anything wrong.


Loper’s practical effect is that Congress will need to get more specific and transparent about the laws it writes, rather than relying upon unelected, unaccountable agencies to fill in the policymaking gaps.


At least two mountain state governors applauded the ruling. The court has essentially removed the fox from the hen house. This decision ensures that agencies can no longer unilaterally expand their authority beyond the letter of the law,” Wyoming Governor Mark Gordon wrote.  


Equally relieved, Montana Governor Greg Gianforte celebrated, “Today, the Supreme Court dealt a huge blow to career bureaucrats in Washington who try to micromanage our way of life. This decision helps restore constitutional governance by ensuring policies are decided by elected representatives instead of agencies.”


The Court’s SEC ruling will stop the appalling practice of an agency acting as prosecutor, judge, and jury. Congress cannot delegate adjudication to an agency at the expense of private citizens unless it is enforcing “public rights” that belong to the government.


“A defendant facing a fraud suit has the right to be tried by a jury of his peers before a neutral adjudicator,” Justice Roberts wrote. “The right to trial by jury is ‘of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right’ has always been and ‘should be scrutinized with the utmost care.’”


Defined roles and separation of powers are part of what protects citizens from government overreach. Policymaking is Congress’s job. Adjudication is the judiciary’s job. Enforcement is an agency’s job. Our institutions work best when everyone stays in their lane. 



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