Saturday, February 18, 2017

Chevron and detrimental emergent order

From Gorsuch’s Opposition to Chevron Speaks Well of Trump and Is a Dilemma for Democrats by John O. McGinnis.

I had not realized this about Supreme Court nominee, Gorsuch.
Judge Neil Gorsuch is worthy successor to Justice Antonin Scalia. He is an advocate of originalism who writes well enough to persuade the public and has the intellectual heft to engage the academy. But there is one way in which he differs sharply from Scalia. He is no fan of the Chevron doctrine, which directs judges to defer to agency interpretations of statutes so long as they are reasonable even if the interpretations are not the best. Given that much of modern law is administrative law and so much of our current democratic deficit is due to the administrative state, this is an important difference.
Well, good.

It has seemed to me that one of the more unremarked evolutions in recent decades has been the full chain of consequence related to delegated governance. Specifically, Congress has become increasingly deferential to the Executive. The Executive has delegated more authority to agencies and bureaucrats. And with the Chevron doctrine, the Courts have deferred to the Administrative state.

There are logical reasons for each link in this chain but the net effect is the evisceration of accountability and transparency.

Bureaucratic administrators, the so-called Deep State, are beyond accountability. A democracy works primarily on a combination of trust and accountability to earn the consent of the governed. If the citizenry are unable to exert pressure on bad laws by voting out the Legislature originating the law or the Executive enforcing the law or the Justice system interpreting the law, then the Law itself is suspect and you end up losing the consent of the governed.

This is not a Democrat or Republican issue, this is the governance elite versus the citizenry. Republican and Democrat establishments have both deferred to the Executive. This frees them up from focusing on crafting good and effective laws and allows them to indulge in the Kabuki Theater of legislation - all show and no reality. The Executive (Republican or Democrat) similarly benefits from the concentration of power but given the breadth and depth of government, it is too much for a unitary command. Power is delegated to the Administrative State giving the Executive plausible deniability when there are bad consequences. And Justice? They can avoid making hard decisions by deferring to the bureaucrats.

Everyone gains except the citizenry.

The best solution is for Congress to take back its delegated authority and actually serve their function of representing the interests of the citizenry through crafted law and policy. The second best solution is for the Executive to take responsibility back from the Administrative State, either directly or via cabinet members.

Overturning the deference embedded in the Chevron decision is the least direct way of resolving the problem, but it is at least a step in the right direction of bringing the system back into balance and restoring some modicum of transparency and accountability.

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