martybegan
Diamond Member
- Apr 5, 2010
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Well they finally did it. Now congress has to be explicit in what it wants executive agencies to do when it passes laws, or face courts figuring it out for them.
A great day for the separation and balance of powers at the federal level.
SHOCKER: SCOTUS Delivers a Kill Shot to Big Government
A great day for the separation and balance of powers at the federal level.
SHOCKER: SCOTUS Delivers a Kill Shot to Big Government
When then-Judge Brett Kavanaugh was on the D.C. Circuit Court, he argued:The Supreme Court itself has recognized in a line of cases that unelected bureaucrats should not decide major questions. Major or minor, the number of questions decided by agencies has proliferated over the course of generations. For more than a century, distrust of the electorate and the ceding of more and more power to the unelected—the phenomenon associated with the Progressive Era—was the dominant paradigm of governing. The vast bulk of the executive branch became insulated from elected officials without serious challenge, even as the everyday experience of citizens rendered the notion of the superior competence of government bureaucrats ridiculous.
We must recognize how much Chevron invites an extremely aggressive executive branch philosophy of pushing the legal envelope (a philosophy that, I should note, seems present in the administrations of both political parties). After all, an executive branch decisionmaker might theorize, “If we can just convince a court that the statutory provision is ambiguous, then our interpretation of the statute should pass muster as reasonable. And we can achieve an important policy goal if our interpretation of the statute is accepted. And isn’t just about every statute ambiguous in some fashion or another? Let’s go for it.” Executive branch agencies often think they can take a particular action unless it is clearly forbidden.