On Monday, July 24, 2023, America’s Future filed an Amicus brief with the Supreme Court of the United States (SCOTUS) in Loper Bright Enterprises, et al. v Gina Raimondo, Secretary of Commerce, et al., Dkt 22-451. Filed in support of petitioners, our brief was joined by 13 nonprofits. The Loper public docket can be found here.
The question presented to the Court is:
Whether the Court should overrule Chevron (1984) or at least clarify that
statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.
The Chevron (1984) ruling provided great deference to executive branch agencies with respect to decisions and rules they create and carry out. However unintentionally or not, this notion serves as the backdrop for the administrative state and un-democratic regime Americans are currently up against.
Chevron resulted in nearly unbridled discretion of contractors and unelected bureaucrats when it comes to creating and enforcing policies and regulatory schemes, thus subjecting our tri-branch system of government to near-irreparable harm. The founders of this country likely did not foresee an America where the un-cabined judgment of unelected bureaucrats would shape or affect our everyday lives. No reasonable person could think placing broad powers in the hands of unelected groups is somehow an acceptable exercise of power by the executive branch.
If SCOTUS rules in favor of the petitioners, the Chevron (1984) decision will be overturned, thereby purging significant power and authority away from federal administrative agencies like the IRS and EPA. To rid the nation of bureaucratic rulers would bring about balance in our nation and return, to the people, a government existing as a system of checks and balances pursuant to our foundational Separation of Powers Doctrine. The American people did not elect contractors and lifelong government employees to draft rules at the expense of our three-branch system of government.
Significantly, just last year, Associate Justice Hon. Neil Gorsuch published his judicious opinion of the Chevron doctrine in a well-reasoned dissent to an order denying SCOTUS review in Buffington v McDonough, SCOTUS Dkt. No. 21-972 (petition denied). Explaining the essence of the Chevron dilemma in this country, Justice Gorsuch stated,
Under a broad reading of Chevron…we tell those who come before us to go ask a bureaucrat. In the process, we introduce into judicial proceedings a systematic bias toward one of the parties. Nor do we exhibit bias in favor of just any party. We place a finger on the scales of justice in favor of the most powerful of litigants, the federal government, and against everyone else.
Recognizing the significant data underscoring the harmful effects this wild engorgement of America’s federal government has on society, footnote 3 of our brief explains, “In 1790, [the federal government] it had just 1,000 nonmilitary workers. Today, we have 2,840,000 federal workers in 15 departments, 69 agencies and 383 nonmilitary sub-agencies. [These numbers can be themselves misleading since much federal work is now done by contractors as part of “downsizing” but the work of the agencies has continued to expand.]”
We, at America’s Future, do not think bureaucrats should run our country. And we do not desire to live under a bureaucratic regime in an administrative state. We hope the SCOTUS follows the lead of Associate Justice Neill Gorsuch and overrules Chevron once and for all.