I have an article in the Orange County Register today about the upcoming Chevron deference case that all the constitutional law nerds are excited about. Excerpt:
The classic 1970s cartoon “Schoolhouse Rock” taught a generation of American kids how a bill becomes a law: Congress debates proposed legislation and votes on it—and if the House and Senate approve, it’s sent to the White House. Then, if the president signs the bill, it goes into the statute books.
But the sad truth is that this simple process barely resembles how lawmaking actually works. In today’s world, most of the rules we must obey are created by unelected employees of the regulatory agencies often called the “Administrative State.” These unelected bureaucrats’ powers far exceed anything contemplated by the Constitution, and they’re subject to few of the checks and balances that the Founders thought essential to a healthy democracy.
The result is a system in which lawmaking occurs almost automatically, without meaningful input by voters or their representatives. No Californian, for example, thinks bees are a type of fish. Yet in 2019, regulators at the state’s Department of Fish and Game passed a rule classifying bees as fish. State law only lets those regulators pass rules for protecting fish, but the law also uses the word “invertebrates,” and since bees are invertebrates, department officials declared that they could therefore write rules about bees, too.
No voter ever thought the perfectly dry land that Mike and Chantelle Sackett bought in Idaho twenty years ago should be legally defined as “a water of the United States,” or that their effort to build a home should qualify as “water pollution.” But a single bureaucrat at the Environmental Protection Agency decided otherwise—leading to a decades-long legal battle that bankrupted the Sacketts even though they won.
No elected member of Congress ever decided to put a one-year limit on veterans applying for disability benefits. But in 2009, when National Guardsman Thomas Buffington applied for payments he was entitled to, he learned Veterans Administration officials had implemented a rule barring payments beyond “one year prior to the date” of an application.
In these and countless other cases, regulatory agencies have exploited vague or undefined words in laws, in order to give themselves power—power that derives not from “we, the people,” but from their own say-so. What’s worse, courts typically let them do it.
Read the rest...
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