The Washington PostDemocracy Dies in Darkness

Opinion Save us, Supreme Court, from runaway regulation

The U.S. Supreme Court on Jan. 5. (Tom Brenner for The Washington Post)
5 min

Farmers and fishermen make their living the old-fashioned way — sweat and struggle. Increasingly they share another thing in common: oppressive bureaucratic oversight. If the Supreme Court can summon the courage this year, it can deal the bureaucrats a body blow and free millions of Americans from diktats from on high, each one of which makes their lives more difficult, more expensive and decidedly less free.

“Operating fishing vessels in the Atlantic is hard work.” So begins a brief to the high court on behalf of herring fishermen. In a new petition asking for the Supreme Court to review a case involving fishing for Atlantic herring, former solicitor general Paul D. Clement paints a picture reminiscent of last year’s Oscar-winning film “CODA.” You will be forgiven if you forgot that the movie featured two actors playing federally mandated monitors on the fishing boat where much of the drama plays out. The presence of the monitors — even the physical space they take up — is the sort of detail that makes a movie great, because it dives deep enough into the realities that reflect the lives made even more difficult by bureaucracy.

The role and cost of such monitors figure at the heart of Clement’s petition to roll back an out-of-control “administrative state.” Monitors figure as well in the tale of another bureaucracy — this one bedeviling the opposite coast, in California.

Chances are, you have never heard of the North American Drought Monitor, which describes itself as “a cooperative effort between drought experts in Canada, Mexico and the United States to monitor drought across the continent on an ongoing basis.” Headquartered at the University of Nebraska, NADM produces maps, not decisions. But its maps determine water allocations, which in turn impact everything in the West.

The writ of the drought monitor is very wide. The Agriculture Department, to cite just one example, uses its maps to determine eligibility for low-interest loans. “The Farm Service Agency uses it to help determine eligibility for their Livestock Forage Program,” the monitor notes, “and the Internal Revenue Service uses it for tax deferral on forced livestock sales due to drought.”

The drought police and the fishing police are just two expressions of the vast administrative state that seems to grow and grip ever larger parts of American life. When covid-19 unleashed a sprawling new set of orders from our bureaucratic overlords, tens of millions of Americans who had previously avoided most contact with the administrative state found themselves enmeshed.

It is difficult to know the exact number of federal agencies, bureaus and sub-agencies empowered to make rules governing life in these United States. There are at least 400. There are 2.85 million civilian employees of the federal government and 18.8 million state and local government agency employees. Given that fishermen are obliged to provide space for the bureaucrats on their boats, and farmers are obliged by regulators to prefer one crop or one field over another, even the victims of overregulation play a part in the machinery.

The power of bureaucracies was supercharged by a Supreme Court decision in 1984, which Clement boldly seeks to overturn. The so-called Chevron doctrine “requires judges to defer to administrative agencies’ interpretations of federal law in most cases where the law may be ‘ambiguous’ and the agency’s position seems ‘reasonable,’” Ilya Somin, a law professor at George Mason University, wrote in The Post. The decision has licensed regulatory overreach. “Chevron deference” has come to mean government by bureaucrats. Drought declarations, wetlands designations, fishing monitors, you name it — the government is here and it’s not going to help you.

Clement’s case is Loper Bright Enterprises v. the Secretary of Commerce — but the real plaintiffs include every citizen hard-pressed by federal overreach. At issue: Must fishermen pay the salaries of the government monitors they are required to host? Ideally, the justices will use the narrow question to overrule the Chevron standard entirely.

The Constitution is clear. Laws are made by Congress. America’s herring fishermen should not be forced to pay for their own tormentors simply because the New England Fishery Management Council of the National Marine Fisheries Service (NMFS), an agency of the National Oceanic and Atmospheric Administration (NOAA), a bureau of the Department of Commerce, says so.

Congress never authorized the Commerce Department to empower NOAA to instruct NMFS to greenlight the New England Council to impose this onerous fee. But here it is. Like water rationing for farmers, like vaccine requirements for soldiers, like lockdown orders on “nonessential” businesses during the pandemic, the unelected use unenumerated powers to limit the liberty of free people.

The Biden administration is urging the court to avoid a ruling on the badly flawed Chevron standard. Like every administration, the Biden team loves the power the decision gives to the executive branch. But millions of Americans will cheer the court when it overturns an almost 40-year-old error. Just do it, justices. Fix the problem.