I don't see any appetite here in the states for moving in the opposite direction and giving the american voters less direct say in who ends up running the country than they already have.
Perish the thought of any such damnable appetite.
America's founding principle of "consent of the governed" as to "who ends up running the country" has been undermined by
Chevron deference to unelected, unaccountable bureaucrats who populate an ever metastisizing bureaucratic state, the de facto fourth branch of government.
The bureaucratic state under
Chevron deference is inimical to liberty for the reason that "liberties may now be impaired not by an independent decision-maker seeking to declare the law's meaning as fairly as possible — the decision-maker promised to them by law — but by an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day."
I urge more congressional action that reins in
Chevron deference and concerning it, as the guardian of our liberties, a reinvigoration of the
entire judicial branch's exercise of its power to "say what the law is," its "province and duty" under
Marbury v. Madison, the most important constitutional case which ACB rightly declared a super precedent.
When a challenge to
Chevron deference comes before the Court, I expect that ACB will join with other justices who are of the opinion that "the rise of the modern administrative state has not changed the [Court's] duty to say what the law is."
If a rollback of
Chevron deference's suffocating excesses cannot be accomplished legislatively or judicially, the Constitution must be changed to allow the check of accountability to do its work in the numerous agencies of the bureaucratic state.
Wikipedia
The United States House of Representatives in the 115th Congress passed a bill on January 11, 2017, called the "Regulatory Accountability Act of 2017", which, if made into law, would change the doctrine of Chevron deference.[16][17][18]
According to Charles Murray in By the People: Rebuilding Liberty Without Permission,
Chevron deference augments that characteristic of prerogative power by giving regulatory bureaucrats a pass available to no private citizen and to no other government officials — including the president and cabinet officers — who function outside the regulatory state. For everyone except officials of the regulatory state, judges do not defer to anything except the text of the law in question and the body of case law accompanying it.[19]
Supreme Court Justice Neil Gorsuch (son of Anne Gorsuch, who was head of EPA at the time of the events which led to the Chevron decision) has also written opinions against Chevron deference,[20] with news commentators believing that Gorsuch may rule against Chevron deference on the Supreme Court.[21]
In the U.S. Supreme Court case City of Arlington, Tex. v. FCC, [22] the dissent by Chief Justice Roberts joined by Justice Kennedy and Justice Alito objected to excessive Chevron deference to agencies:
My disagreement with the Court is fundamental. It is also easily expressed: A court should not defer to an agency until the court decides, on its own, that the agency is entitled to deference.[22]:1877
In Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., we established a test for reviewing "an agency's construction of the statute which it administers." 467 U.S. 837, 842, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). If Congress has "directly spoken to the precise question at issue," we said, "that is the end of the matter." Ibid. A contrary agency interpretation must give way.[22]:1878
"It is emphatically the province and duty of the judicial department to say what the law is." Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803). The rise of the modern administrative state has not changed that duty. Indeed, the Administrative Procedure Act, governing judicial review of most agency action, instructs reviewing courts to decide "all relevant questions of law." 5 U.S.C. § 706.[22]:1880
Likewise before joining the U.S. Supreme Court, 10th Circuit Judge Gorsuch in his concurrence in Gutierrez-Brizuela v. Lynch [23] also objected to excessive Chevron deference to agencies:
Quite literally then, after this court declared the statutes' meaning and issued a final decision, an executive agency was permitted to (and did) tell us to reverse our decision like some sort of super court of appeals. If that doesn't qualify as an unconstitutional revision of a judicial declaration of the law by a political branch, I confess I begin to wonder whether we've forgotten what might.[23]:1150
In the Administrative Procedure Act (APA) Congress vested the courts with the power to "interpret ... statutory provisions" and overturn agency action inconsistent with those interpretations. 5 U.S.C. § 706.[23]:1151
For whatever the agency may be doing under Chevron, the problem remains that courts are not fulfilling their duty to interpret the law and declare invalid agency actions inconsistent with those interpretations in the cases and controversies that come before them. A duty expressly assigned to them by the APA and one often likely compelled by the Constitution itself. That's a problem for the judiciary. And it is a problem for the people whose liberties may now be impaired not by an independent decisionmaker seeking to declare the law's meaning as fairly as possible — the decisionmaker promised to them by law — but by an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day.[23]:1152–1153
