In the flurry of activity at the end of the Supreme Court’s 2023-2024 term, a 6-3 majority ruled in two cases, Loper Bright v. Raimondo and Relentless v. Department of Commerce, that the courts need not defer to federal agencies’ interpretations of the powers delegated to them by Congress when Congress’s instructions are unclear or ambiguous.
Courts still may defer to an agency’s findings of facts, but not to an agency’s interpretation of the applicable law.
The rulings overturned the court’s long-standing Chevron doctrine.
The Supreme Court’s dissenting minority — Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson — saw Loper as an exercise in judicial hubris, seizing “the power to make complex decisions over regulatory matters away from federal agencies — and giv[ing] it to themselves.”
Justice Brown Jackson used words like “chaos” to characterize the “tsunami” of lawsuits against regulatory agencies she predicts will follow in Loper’s wake.
The dissenters seem to have channeled an earlier Progressive Era mindset when President Woodrow Wilson argued that eliminating the “spoils system” for appointing executive branch officials would reduce the corruption and incompetence then rampant in the federal bureaucracy.
Wilson wanted a professional, apolitical, “expert” civil service neutrally and mechanically to execute the laws enacted by Congress. Government employees and managers thenceforth would be selected on merit and granted lifetime tenures to insulate them from political influence.
Wilson’s vision was naïve, as more than a half-century of research by public choice and political science scholars has shown. Government employees are no less self-interested than the rest of us. They seek larger agency budgets, additional responsibilities, promotions in rank and higher-paying jobs, both within the government and in the private sector — often with the very same firms they were responsible for regulating, once their public service ends. Outsiders refer to this as the “revolving door”.
Far from being the automatons Wilson thought would execute their congressional mandates impartially, bureaucrats are as vulnerable as elected politicians to external influence.
Senior executive branch officials may never face the voters themselves, but some 4,000 of them owe their appointments directly to the White House, thousands of others know they have to go along to get ahead, and every federal employee knows that agency funding depends on the goodwill of House and Senate majorities.
The political pressures on agencies may be indirect. But they’re very real and effective. Just ask the director of the U.S. Secret Service, possibly soon to be looking for new employment.
Government agencies, like all other institutions, are staffed by fallible human beings, hampered by incomplete information and limited knowledge of the future. And the public has seen time and time again with the Department of Education, teachers’ unions, the Federal Aviation Administration and the airlines that even if agency executives are long-time veteran “experts,” they often become “captives” of the individuals and groups lobbying to shape agency policy: the very constituencies they’re charged with overseeing.
The late James Q. Wilson’s landmark book, “Bureaucracy: What Government Agencies Do and Why They Do It,” is perhaps the most comprehensive treatment of the incentives that drive — and the constraints that bind — administrative policymaking.
One intriguing explanation, offered by Stanford political scientist Morris P. Fiorina in “Congress: Keystone of the Washington Establishment,” is that Congress delegates responsibility to federal agencies for executing the laws it enacts so the bureaucrats can be blamed when things go wrong.
It no longer is possible, and may even be intellectually dishonest, to continue to presume or pretend, as the Supreme Court’s minority implicitly does, that governmental institutions and employees are animated solely by the public’s interest.
The Supreme Court’s decisions in Loper and Relentless not only limit the discretionary powers of government officials, they send Congress a message that it’s the House and Senate’s responsibility to articulate clear and precise regulatory rules when they write and amend the laws.
If the legislators don’t, the courts no longer will allow agency officials to interpret applicable statutory authorities on their own. The courts will step in and do it. That’s a profound change from business as usual as it’s been practiced in Washington since 1984.
William F. Shughart II, a distinguished research advisor and senior fellow of the Independent Institute, Oakland, Calif., is J. Fish Smith Professor in Public Choice at Utah State University’s Jon M. Huntsman School of Business.
