SCOTUS 1, Administrative State 0
The 'Chevron deference' -- may it rest in peace -- as a schooling in American history.
Last week, U.S. Supreme Court decisions were coming down fast and furious.
You could be excused for thinking you needed a scorecard to keep track.
Helpfully, the New York Times provided one:
The circled case, Loper Bright Enterprises v. Raimondo, was a decision in the highly unexciting area of administrative law.
Unexciting, but not inconsequential.
TV shows that contain language you don’t want your children to repeat start with a warning.
I’m going to use the term ‘administrative state’.
Which in recent years has become a loaded political meme.
Famously, Steve Bannon, during his mercifully short tenure as a Trump advisor, once said his goal was a “deconstruction of the administrative state.”
In the over-sensitive and hyper-politicized Twitterverse, just using the term now can get you tossed into some camp or another.
Or maybe the slammer. Bannon was supposed to report to prison today, July 1st.
In 2020, Alasdair S. Roberts, of the University of Massachusetts Amherst School of Public Policy, saw fit to write a scholarly article for the Public Administration Review about the problem of using the phrase ‘administrative state’ in academic work.
Roberts warned his fellow academics that the words “may unwittingly trigger negative associations in the minds of non-academics.”
I’ll keep that in mind if this gets cross-posted to Public Administration Review.
The first thing a historian has to tell people about the administrative state is: it’s real.
And has been for over a century.
In the U.S., we can date it easily to 1917, the year America entered World War I.
Wars, like MiracleGro, work wonders for increasing the size of the state.
A few of my hyper-liberal students persist in thinking the ‘administrative state’ has to be something Steve Bannon and Trump supporters made up.
I give them this exercise.
Read the following passage carefully. Guess who wrote it, and when:
The widening area of what in effect is law-making authority, exercised by officials whose actions are not subject to ordinary court review, constitutes perhaps the most striking contemporary tendency of the Anglo-American legal order...These administrative complements are euphemistically called “filling in the details” of a policy set forth in statutes. But the “details” are of the essence...The control of banking, insurance, public utilities, finance, industry, the professions, health and morals, in sum, the manifold response of government to the forces and needs of modern society, is building up a body of laws not written by legislatures, and of adjudications not made by courts and not subject to their revision. These powers are lodged in a vast congeries of agencies. We are in the midst of a process, largely unconscious and certainly unscientific, of adjusting the exercise of these powers to the traditional system of Anglo-American law.
Give up?
That was written by Felix Frankfurter, a founder (in 1920) of the American Civil Liberties Union, in 1926, a decade before he was named to the Supreme Court by Franklin Roosevelt.
If you’re into presidential politics and the administrative state, take up your beef with Woodrow Wilson.
And regret not voting Bull Moose in 1912.
Teddy Roosevelt: gotta love the guy.
To my students, the Progressive Era feels like ancient history.
Except it’s not.
Our contemporary progressives are pretty much direct descendants of those (capital ‘P’) Progressives.
They have the same faith in selflessness, competent, and scientifically objective administration as the old Progressives.
Along with the same self-righteousness and presumption of moral rectitude. Not for nothing was Woodrow Wilson was the son of a Presbyterian minister.
Both bunches of progressives have no qualms about inflicting their values on the working masses.
Prohibition’s particular targets were Italian immigrants, who drank wine with dinner, and the Irish, who drank beer.
As a quasi-religious purity movement, Prohibition has eerily parallels with the one currently trying to rid the world of ‘carbon pollution’.
Which, at long last, gets us around to the Supreme Court.
Last Friday, the Supreme Court struck down the so-called 'Chevron Deference'.
Aside: It’s easy to mis-read the word. It's deference, as 'humble submission and respect', not ‘defense’. Deference is what you show your social betters, or elderly grandparents.
‘Deference’ came into play when a law passed by Congress was silent, ambiguous, or unclear.
As laws about the environment often are.
They tend to be aspirational. Congress will say, “Do something to make sure the water is clean.”
The heavy lifting — for example, figuring out which water, exactly how clean, and who pays — was left to the agency. They’re the experts, after all.
So if an agency was charged with regulated something but the law was unclear, the courts, under Chevron, were supposed to ‘defer’ to the agency’s reading of the law.
Chevron was, in a way, also a defense. Of the agency’s actions, in advance.
If the agency was taken into court, it’s reading of the law was presumed to be correct. Anyone claiming the contrary had a mountain of work to do.
I’ll leave the legal ins and outs of Friday’s decision to others.
I’ll take the historian’s thousand-foot-view and summarize.
Chevron became an issue because the EPA went rogue.
Government regulation is like kudzu. Periodically it needs to be whacked back.
In the U.S., we seem to do this in long cycles.
Regulations proliferate; get established; then get downright entrenched.
Eventually, we come to realize it’s high time to do something about that thicket that’s grown up over there.
This is not particularly partisan process.
Jimmy Carter was deregulator, as was Ronald Reagan.
That deregulation was done the old-fashioned way. Congress would pass a law, like the Airline Deregulation Act (1978), and the president — it that instance, Carter — signed it.
This time it’s different.
The original clean air and clean water laws, such as Clean Air Act of 1963, were bipartisan.
And not very controversial.
There was some grousing, to be sure.
Complying with the new rules wasn’t free, or even cheap.
But few now would want to return to the bad old days, when L.A. had smog and Cuyahoga River caught fire.
In 1963, the Clean Air Act was written to deal with real pollutants: photochemical smog precursors like carbon monoxide (CO); sulfur dioxide (SO₂); nitrogen dioxide (NO₂); and particulates (aka, soot).
It worked. Although smog reduction got a big assist from new technology, the catalytic converter.
Then along comes the global warming scare. Let’s date that circa 2007.
A new generation of (self-described) environmentalists — I prefer to call them anti-industry ideologues, but that’s just me being me — sought to graft their anti-CO₂ agenda into the old environmental laws.
Now, CO₂ is not one of those hazardous gases. It’s natural and nontoxic.
CO₂ is only in the far future a potential hazard to humans — and only if you accept, with heart and soul, the fundamental tenants of climate orthodoxy.
A religious belief, in my opinion. The science behind CO₂ being ‘the principle control knob of global warming’ is shoddy, and highly speculative.
Notwithstanding, the climate zealots were able to get CO₂ dumped into a legal bin called ‘pollutants’. I’ve written about that folly here.
That allowed the EPA to regulate CO₂. It’s been jonesing after it ever since.
At the time, only the CO₂ that came from automobile tailpipes, not fossil fuel combustion.
A legal technicality rarely stops the righteous.
In June 2014, the Obama EPA announced the Clean Power Plan, under which the EPA would not simply regulate CO₂ emissions, but oversee electricity production, consumption, and distribution within every State.
I don’t know if ‘hutzpah’ is a term of art in law, but the Obama EPA sure had it.
‘Usurpation’ is another good word. The EPA appointed itself to be the federal agency in charge of U.S. industrial policy.
Or, more accurately, unilaterally decided it would commit the U.S. to an anti-industry industrial policy, somewhat like that of Germany.
Call me old-fashioned, but something that important seems like it ought to be done by Congress, after a lot of deliberation and debate.
In 2014, the EPA argued that, because of Chevron Deference, its legal interpretation of the Clean Air Act could not be questioned by the courts.
For conservative jurists, them was fighting words.
In West Virginia v. Environmental Protection Agency (2022), the court took a healthy slice out of the Chevron Deference, invoking what is called the ‘major questions’ doctrine.
The major questions doctrine isn’t complicated. If an agency wants that much power over something important, “the agency … must point to ‘clear congressional authorization’ for the power it claims,” as Chief Justice John Roberts wrote in the decision.
Since 2016, it was pretty clear that Chevron would go.
It took a load of fish to tip it over the edge.
![](https://substackcdn.com/image/fetch/w_1456,c_limit,f_auto,q_auto:good,fl_progressive:steep/https%3A%2F%2Fsubstack-post-media.s3.amazonaws.com%2Fpublic%2Fimages%2F999b7d8b-db9f-4aec-b520-a9792e2e34b7_2048x1365.jpeg)
Loper Bright Enterprises v. Raimondo concerned fish.
Fish law is a favorite subject of mine.
Closing the Indian Point nuclear power plant on the Hudson River involved fish.
Aside: It was a great plant in a great little community, Buchanan. For a time I kept a boat on the Hudson nearly.
In 1965, Sports Illustrated writer and passionate angler Robert Boyle combed through a garbage dump to dig up evidence buried by Con Edison: carcasses of his favorite, striped bass, which had been sucked into the cooling water intake of Indian Point 1.
Con Ed installed fish screens:
That wasn’t good enough.
Fish larvae. Those turned out to be a lawyer’s dream issue.
Fish eggs hatch in the zillions, and 99% of them don’t make it very long in nature.
But their human legal champions were not wrong, technically, to point out that some of them were having their brief lives snuffed out in the cooling intakes.
Con Ed agreed to close the plant on days when fish larvae were numerous in the river, an average of 42 days a year.
Still not good enough.
Those fish larvae eventually made it all the way to the Supreme Court.
But I digress. Often happens when I start to a fish story.
Loper Bright started back in 1976, when two congressmen with a nose for a hot-button issue sniffed out that foreign fishing boats working too close to the US shore.
One was a Democrat from Massachusetts, the other a Republican from Alaska.
At the time, ‘too close’ was a bit vague.
In Napoleon’s day, ‘territorial waters’ had a simple, operative definition: a country controlled its coastal waters the distance from shore it could shoot one of its cannons.
That got rounded up to the 19th century’s famous ‘three (nautical) mile limit’.
But by the middle of the 20th century, competition for fish — and offshore oil — had prompted countries to start unilaterally declaring 'exclusive economic zones' out to the continental shelf, roughly 200 nautical miles.
President Truman did this for the US in 1945, but with a presidential proclamation. The Fishery Conservation and Management Act of 1976 finally wrote the 200 mile limit into a US law.
Since the real problem with those foreign fishermen had been that they were overfishing, the law entrusted the Secretary of Commerce to regulate fishing in those coastal zones. The federal agency in charge of that is now called the National Marine Fisheries Service (NMFS).
The text of the 1976 law — now we approach some of the fine legal points — allowed the NMFS to “require that one or more observers be carried on board a vessel … , for the purpose of collecting data necessary for the conservation and management of the fishery.”
The fishermen had no problem having observers onboard going along for the ride. They liked the company.
But the law said nothing about who was supposed to pay the observers.
In 2020, the NMFS decided the fishermen should pay, about $710 per day.
The herring fishers did have a problem with that.
The monitor’s fee would take hefty cut of the voyage revenue, typically shared out among a four-man crew. That money also had to tide the crew over while they were ashore.
When the fishermen went to court the first time, they lost.
NMFS was given Chevron Deference.
The 1976 law was silent about who paid.
So, the lower court deferred to the NMFS’s interpretation of it.
By one count, over 19,000 judicial opinions between 1984 and 2024 cited Chevron.
That’s a lot, although a simple citation count, while easy to do by computer, is not a very meaningful metric. Citing Chevron was practically obligatory for any agency defending an administrative law case.
The ‘Chevron’ of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) was indeed the American multinational energy corporation headquartered in San Ramon, California.
Speaking of the Progressive Era, Chevron is a descendant of John D. Rockefeller's Standard Oil trust. Standard Oil was broken up in 1911:
During the middle years of the 20th century, Standard Oil of California, Socal, was one of the ‘Seven Sisters’ of big oil. In 1985, Socal merged with Gulf Oil and renamed itself Chevron.
The Progressive Era trust-busters, by the way, never expect the state to get in and run the trust or its busted-up pieces. They hoped setting up competition among the pieces would be enough to make capitalism do its thing better.
The Natural Resources Defense Council, the NRDC, is also still very much around.
Robert Bryce puts the NRDC at the #4 spot of what he calls the "anti-industry industry.” It trails behind only the World Wildlife Fund, the World Resources Council, and the Environmental Defense Fund.
The NRDC is not a small outfit. Its annual revenue is about $200 million a year. Wikipedia says the NRDC has a staff of "about 700 lawyers, scientists and other policy experts."
The NRDC’s history is every bit as interesting as that of Standard Oil.
The organization was found in 1970 by a clique of Yale Law graduates.
They were united by one thing: an implacable hatred of nuclear power.
With their impeccable ivy league credentials — the NRDC’s principal founder, James G. (Gus) Speth, had been a Rhodes Scholar and a clerk to Supreme Court Justice Hugo Black — their then-little NGO got start-up money from the Ford Foundation.
And, just as tech start-up might want to take advantage of a hole in the market, the clever NRDC lawyers perceived that the National Environmental Policy Act (NEPA) of 1969 might give them an opening to block — or at least obstruct and delay — the nuclear power plants they hated.
That wasn’t obvious. The 1945 Atomic Energy Act had very explicitly put the Atomic Energy Commission, the AEC, in charge of regulating all things relating to radiation in the environment.
The Big Idea of the young NRDC lawyers was to use non-radiological ecology law to obstruct the plants.
They took the AEC to court, claiming the hot water discharge from the twin Calvert Cliff reactors being built by the Baltimore Gas and Electric Company (BG&E) might harm Chesapeake Bay’s famed blue crabs.
Okay, crabs are a crustaceans, not fish. But see what I mean?
They petitioned District of Columbia Court to order the AEC to stop what it was doing and file an environmental impact statement.
The District of Columbia Court of Appeals agreed. The caption is Calvert Cliffs' Coordinating Committee, Inc. v. United States Atomic Energy Commission (1971). It’s now considered a foundational case in environmental law.
Odd political things were going on inside the Nixon administration at the time. The AEC decided not to appeal.
The NRDC, got the win — delay — it wanted. The AEC halted licensing all nuclear plants for eighteen months in order to modify its rules.
Delays are project-killers when capital investment is involved.
Calvert Cliffs eventually got built. Unit 1 started putting power on the Maryland grid in 1975.
Its reactors, by the way, have been record-beating. Around 2009, Unit 1 operating 692 days non-stop. Calvert Cliffs Unit 2 once set an operating capacity record of 101.37%.
Aside: A ‘revolving door’ — through which government officials go to work for lobbying organizations and vice-versa — is a sure symptom of regulatory capture. Gina McCarthy, a former president of the NRDC, is now Biden’s climate adviser.
In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., the NRDC was back.
As usual, it was trying to push the environmental law envelope.
Although the media commentary sometimes neglects to mention that Chevron actually won the case.
Prior to the Reagan administration, the Clean Air Act had been interpreted by the EPA in such a way that it could micro-manage permitting of new equipment at industrial plants and refineries, such as those owned by Chevron.
The Reagan administration wanted that simplified.
Reagan’s administrator of the EPA was Ann Gorsuch, mother of the current Supreme Court justice:
Which probably says something about the Beltway becoming a hereditary elite, but I’ll save that thought for another day.
The simplified rule was: if the plant as a whole did not increase its overall emissions, whatever changes equipment changes Chevron made inside the plant was its own business.
In 1981, the NRDC sued to force the EPA to go back to micro-management. It won in the D.C. Circuit.
More inside-the-Beltway baseball: the opinion was written by Ruth Bader Ginsburg.
Chevron’s appeal went to the U.S. Supreme Court.
Chevron won. The NRDC lost.
The real winner was the administrative state.
The Supreme Court opinion in 1984 said federal agencies should be given ‘deference’ when they interpret the law themselves.
The Chevron Deference was born.
The leftward-leaning part of the media commentariat has already been chattering about Friday’s Supreme Court’s decision being a “judicial power grab.”
The rightward-leaning part is gloating over a defeat for “unelected bureaucrats.”
Both are oblivious to the real fault line in the dispute.
That’s the huge chasm between the administrative state and the U.S. Constitution.
The administrative state is still miles ahead, despite the Constitution scoring a point on an own goal. Ending Chevron Deference is but a tactical victory.
The tripartite division of powers among the legislative, judicial and executive branches was carefully crafted, like one of those Enlightenment clockwork mechanisms, by the authors of the Constitution in 1787.
The division of powers and its famous checks and balances were designed to prevent too much power concentrating anywhere.
Which explains why, compared to the countries of Europe, the U.S. came late to the administrative state party.
The despots of the good old days had since time immemorial been surrounded by scribes, satraps and tax-collectors.
In 19th century Europe, those characters transitioned smoothly, as they do, from working for the monarch to being servants of the civil state.
The French, as always, had a clever word for it: la bureaucratie. Rule (kratos) by someone sitting at a desk (bureau).
By the last decades of the 19th century, the sheer scale industrialization had convinced many political scientists that a vast expansion of the state was inexorable.
One of those taught at Princeton: Woodrow Wilson.
To Wilson and his fellow Progressives, a bigger state was not undesirable.
In commerce, the huge organizations like U.S. Steel enjoyed obvious efficiencies of scale. It employed scientific management — ‘Taylorism’.
And there was an opportunity to do good.
Strange as it sounds now, Otto von Bismarck was something of a hero for the American Progressives.
That bellicose Prussian introduced accident and old-age insurance for German workers, even early socialized medicine.
But an efficient, centralized state wasn’t going to work unless everybody in it got on the same page.
Wilson became a biting critic of the doctrine of separation of powers. In his mind, it had become an impediment, preventing the government from addressing the pressing issues of the modern age.
It was easy to see how the old tripartite division could no long work.
Administrators were unelected officials who adjudicated disputes, but were not part of the judiciary.
Administrators made rules that had the force of law, but had not been elected to a legislature.
Wilson dismissed what he called the “old liberalism,” which had worried about government tyrannizing the individual.
But that would not be a problem, because America’s role in world history was fundamentally righteous.
That was the political theory, which set the table.
The administrative state become a reality when Mr. Wilson went to war in 1917.
The new administrative state got off to a bit of a rocky start. As Arthur Herman writes:
As the fall of 1917 moved on into winter, mobilization wasn’t moving anywhere. The U.S. Shipping Board had spent half a billion dollars but hadn’t built a single ship. A similar Aircraft Board had spent even more and hadn’t launched a single plane. The War Industries Board had turned out to be nothing more than a title and a suite of offices; it couldn’t sign a contract or revise an existing one held by the War Department or the navy.
Then there was the debacle with the railroads. The newly created Railroad War Board ordered the tagging of certain items, creating tie-ups and bottlenecks that virtually shut down them down. Finally, in December 1917, Wilson nationalized them.
The U.S. government was wasn’t the only one that made a radical turn toward centralization during the Great War.
The title of Herman’s excellent book is 1917: Lenin, Wilson, and the Birth of the New World Disorder.
It’s an unlikely paring, but Herman makes it work.
Wilson’s “heady worldview—at least as potent as Lenin’s at about the same time: the power of government to do only good, a power that had no legitimate limits, a power that would lead a great people to their irresistible historical destiny.”
With World War I, the administrative state became a permanent fixture in American government.
Its vast expansion during the New Deal often gets similarly justified as an emergency measure, required to deal with the Great Depression.
Cass R. Sunstein, a Constitutional scholar whose writing I enjoy, suggests that the New Deal "altered the constitutional system in ways so fundamental as to suggest that something akin to a constitutional amendment had taken place."
In the Chevron decision, the old Constitution worked a bit like training wheels on a child’s bicycle. They temporarily touched solid ground.
And, perhaps, have saved us from an embarrassing pratfall.
But our government is all grown up now, and shown itself perfectly capable of running off the rails on its own volition.
The rest of the story, as they say, will be history.
[Sorry, this post is pushing its character limit, so there’s no room for footnotes. When I get around to it, I’ll put them up separately someplace you can find them.]
Will Rogers quotes for this week:
I am not a member of any organized political party. I am a Democrat.