In the early days of the United States, the Founding Fathers, including Alexander Hamilton, emphasized the idea that the people would govern through their elected representatives. Fast forward to today, and much of the governing is carried out by unelected bureaucrats in executive branch agencies. The Supreme Court’s new term presents an opportunity to address this issue in the case of Loper Bright Enterprises v. Raimondo.
Federal agencies are tasked with implementing the policies established by Congress when it enacts statutes. However, the problem lies in the fact that these agencies often cross the line from policy implementation to policymaking. As a result, the bureaucracy grows, and each new administration uses its bureaucrats to shape policy rather than working through Congress. This leads to a constant cycle of rule changes, modifications, and expansions depending on the political landscape.
Loper Bright Enterprises v. Raimondo is a prime example of this problem. In 1976, Congress passed the Fishery Conservation and Management Act, granting authority to the National Maritime Fisheries Service to create “fishery management plans” and mandate the presence of observers on fishing vessels. In February 2020, the agency issued a rule requiring New England herring fisheries to carry these observers on board and pay their wages, exceeding $700 per day. Fishermen argued that the statute passed by Congress did not go that far.
This case illustrates how federal policies are crafted. Congress often passes vague or broadly-worded statutes, hoping that bureaucrats will fill in the gaps or create policies that Congress wants to avoid addressing directly. Politicians take credit for popular results while blaming bureaucrats for unpopular ones. This process results in elected representatives and the public having less control over the governing process.
The Supreme Court’s 1984 decision in Chevron USA v. Natural Resources Defense Council made matters worse by stating that if Congress had not “directly spoken to the precise question at issue,” courts must defer to an agency’s “permissible construction of the statute.” In essence, Congress must be clear and precise, while agencies can be merely permissible.
In Loper Bright Enterprises v. Raimondo, the agency argued that requiring fishermen to pay observer wages was incidental to the presence of observers on board. However, the statute’s language shows that this interpretation doesn’t hold. The appeals court sided with the agency, applying the Chevron standard.
The Supreme Court’s decision to take this case and address whether Chevron should be clarified or abandoned altogether indicates a possible shift in the power of agencies to make policy. The hope is that the Court’s decision will lead to a reduction in the influence of unelected bureaucrats in policymaking.
Ultimately, the liberty of the American people depends on the idea that they should govern through their elected representatives. It is crucial that the Supreme Court plays its part in safeguarding this principle, as eternal vigilance is required to secure the blessings of liberty, as President Andrew Jackson once emphasized. The outcome of this case will be closely watched to see how much power the Court is willing to return to the people and their elected representatives.
