Really? The End of Democracy as we Know it?
By Karen Budd-Falen
The headlines are funny. The U.S. Supreme Court is considering a ruling which may pull back the administrative power of the unelected federal employees and force this power into the hands of Congress.
But, the pundits posit the end of America if decisions directly impacting the American citizens are left to the elected representatives we voted into office.
As I recall from my government class at Big Piney High School, the purpose of elected officials was so they could make the laws. Making laws was not the job of the bureaucracy.
The cases before the Supreme Court arose out of the federal agencies making regulations which “interpret” Congressional statutes. Currently, when Congress passes a law, it is so full of holes, a Mac truck could drive through it.
In 1984, the Supreme Court held this in matters interpreting federal statutes, courts were to defer to the federal bureaucracy’s policy interpretations. It was called “Chevron deference” and while there are extremely limited circumstances when someone could challenge Chevron deference, in my experience, the courts would just defer to the agency rather than letting other experts testify.
I cannot explain the number of cases I have brought opposing a federal regulation which was going to adversely impact someone’s property rights and the government counsel would just claim “agency deference” – end of the discussion.
Even if my expert was eminently qualified to offer an expert opinion, they would never be heard because the court would defer to the agency.
I am not saying all federal agency regulations are wrong, but for government attorneys to not argue the substantive merits and just say the agency is right merely because it is the federal agency is not how our system should work.
If, after all of the evidence is reviewed and the legal arguments are made, the agency is correct, so be it. But to not even allow American citizens to make an argument is wrong, and I am thrilled this Supreme Court is reconsidering Chevron deference.
What else amazes me is many environmental groups have lined up against the ability to challenge federal agency regulations and supporting Chevron deference.
The Natural Resources Defense Council states federal agencies should get to make “policy choices,” because “Congress is not equipped to micromanage the day-to-day operation of the legislation it passes.”
EarthJustice believes “statutory decisions which require policy judgments should be left to politically accountable legislators and executive branch agencies.”
There are approximately 4,000 politically-appointed individuals who come in with any given president to manage 2.95 million federal government employees. With this kind of ratio, rarely is the bureaucracy politically accountable.
I am not saying all federal employees are politically motivated, but the math doesn’t add up.
And, consider the whiplash American citizens have to go through every time there is a change from a liberal to a conservative president. We see it all the time. The new person just revokes the old person’s rules and writes their own.
I think either Congress stating exactly what policy choices its wants or the courts taking a much more active role in interpreting what Congress has ordered is better than the stark changes from the Obama to the Trump to the Biden regulatory regime.
In the real world, we feel like a tennis ball at Wimbledon. Leveling the playing field and giving litigants – whether representing the conservative or liberal view – a level playing field against the federal agencies is exactly what this Supreme Court should do.
Forcing our elected representatives to pass clear legislation and setting the policy to implement this legislation is not the end of democracy – it is democracy.
And, to my friends who are complaining we don’t have a democracy but a republic, I know, and the point is still the same.
Karen Budd-Falen is a senior partner with Budd-Falen Law Offices, LLC and can be reached by visiting buddfalen.com.
