Sen. Ted Cruz took aim Thursday at a Supreme Court precedent that empowers the administrative state at the expense of the people’s will and the Framers’ vision in the Constitution.
This Supreme Court doctrine has “played an enormous role in the expansion of the administrative state,” Cruz, a Texas Republican, told The Daily Signal in a phone interview Thursday. “It has resulted in the American people being subject to the tyranny of the bureaucracy, over which they have very little control or ability to demand accountability.”
Cruz referred to “Chevron deference,” the doctrine that whenever a law is ambiguous, a federal agency has the authority to interpret the scope and content of that ambiguity to achieve its ends, so long as the interpretation is “reasonable.” The doctrine dates back to the 1984 case Chevron v. National Resources Defense Council. Cruz led a group of 35 senators and representatives in supporting fishermen challenging a federal regulation in the upcoming Supreme Court case Loper Bright Enterprises v. Raimondo—a case in which the court will reconsider Chevron deference.
Under this doctrine, “the courts give an extraordinary amount of deference to agency interpretations of law, even when those agency interpretations are not mandated by the statue that Congress passed and the president signed,” Cruz explained.
The senator argued that Chevron deference insulates bureaucrats who make the rules and regulations Americans must live by — creating a perverse protection for people who make life worse for everyday citizens.
“Far too many of the bureaucrats, quite frankly, don’t give a damn about what the voters think,” Cruz said. “One of the reasons why you see so many policies that destroy jobs, that hurt people across the country coming from the unelected bureaucracy is precisely because elected officials don’t have to pay the price for those decisions.”
This protects elected officials because they can merely blame bureaucrats.
“Your jobs that these bureaucrats took away, gosh, don’t blame me because I’m not the one who did that,” Cruz said, paraphrasing an unscrupulous politician. “The framers rightly envisioned a constitutional structure where those creating legislative rules could be held to account by the voters.”
Cruz filed a brief arguing that Chevron deference undermines all three branches of government as laid out in Articles I, II, and III in the Constitution.
Chevron deference undermines Congress’ legislative power by allowing agencies to make their own rules and it undermines judicial review by weakening the courts’ ability to enforce the law.
Cruz told The Daily Signal that it undermines the presidential power to execute the laws as stipulated in Article II, as well.
“The president is a constitutional officer who is democratically accountable,” he noted. “Chevron has helped fuel the growth of the modern administrative state, and in many instances, the unelected bureaucrats are not only unresponsive to Congress, but they are unresponsive to the elected president and the political leadership.”
“We see frequently a disconnect between the bureaucracy that views itself as the permanent government and the elected leadership in Article II,” he noted, referring to what former President Donald Trump called “the Deep State.”
“The president should be able to execute the laws consistent with his or her policy priorities and not handcuffed by unelected bureaucrats who believe they don’t work for the president and they don’t work for anybody else, either,” Cruz argued.
The senator claimed that Loper Bright “provides an excellent vehicle to overturn Chevron.”
In Loper Bright, fishermen are challenging the National Marine Fisheries Service—represented by Commerce Secretary Gina Raimondo. Federal law forces fishermen to carry inspectors aboard their vessels. A new Fisheries Service rule forces the fishermen to pay the salaries of these federal inspectors. The federal law requiring the inspections does not stipulate that fishermen must pay inspectors’ salaries, but the Fisheries Service insists that it has the power to demand payment under Chevron.
A divided panel of the U.S. Court of Appeals for the District of Columbia Circuit sided with the Fisheries Service in August 2022, noting that the statute leaves “room for agency discretion.” Yet the Supreme Court granted a writ of certiorari.
“Here the federal government enforced regulations requiring a family fishing company not only to allow a fishing monitor on their ship but also forcing them to pay the salary of that monitor,” Cruz explained. “Those facts illustrate well how bureaucrats easily stray and routinely stray from the language and the actual policies enacted by Congress.”
“They almost always stray in a direction of increasing the burdens on the American people, making regulations more costly, more burdensome, more destructive to jobs and economic growth,” the senator added. He noted that multiple justices have said they would like to revisit the Chevron precedent.
Cruz filed his brief Thursday, and many other Republican senators joined. Kentucky’s Mitch McConnell, Tennessee’s Marsha Blackburn, North Carolina’s Ted Budd, Texas’ John Cornyn, Arkansas’ Tom Cotton, North Dakota’s Kevin Cramer, Montana’s Steve Daines, Iowa’s Joni Ernst and Chuck Grassley, Mississippi’s Cindy Hyde-Smith and Roger Wicker, Louisiana’s John Kennedy, Utah’s Mike Lee, Wyoming’s Cynthia Lummis, Missouri’s Eric Schmitt, Florida’s Rick Scott, and South Carolina’s Tim Scott signed on. Rep. Mike Johnson, R-La., led the effort in the House of Representatives.
Cruz noted that he filed amicus briefs in other key Supreme Court cases, such as Groff v. DeJoy, 303 Creative v. Elenis, and Students for Fair Admissions v. Harvard College.
“The Supreme Court agreed with the position advocated in my amicus briefs,” upholding “religious liberty, free speech, and equal protection rights” in those cases, he noted.
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