"By the time they realize we’re gone, fire will be the only light. "
The end of American administrative government won't come with a bang, but with a series of whimpers disguised as federal court decisions.
This week’s soundtrack: The World is a Beautiful Place & I am No Longer Afraid to Die - “We Saw Birds through the Hole in the Ceiling”
The myth of the frog in the boiling pot is a thing I think about a lot regarding the end of our world. Climate change comes to mind immediately; the ham-handed climate disaster film 2012 is a warning insomuch as my getting hit in the head by a falling sledgehammer – a thing that happened to me in college – was a warning. Deterioration doesn’t usually happen in such an acute way; the Colorado River didn’t dry in a day or a month or even a year. It’s taken decades to produce the largest megadrought in 1,200 years.
And so goes administrative government.
Last week, the United States Supreme Court announced that it would hear challenges to Chevron deference. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. is a landmark 1984 case that basically puts into writing the practice of federal agencies’ interpretation of ambiguous or unclear statutes that they have to administer. In short, it lets government experts do the things for which they were hired to do.
At the risk of sounding like a polemicist, the anti-Chevron crowd has a mindset that is difficult me to understand. As such, it mostly goes this way: Democracy – as practiced by people voting for their members of Congress – should be exercised and the power should be in the people’s representatives. Therefore, members of Congress need to make the laws, while professional civil servants do not. Professional civil servants are simply messengers/”errand boys” (in the words of former Attorney General Barr) for Congress’ laws, which are stand-ins for ~democracy.~
With the usual caveat that I am neither a constitutional scholar nor a lawyer, the above viewpoint strikes as about the most naïve notion, at best, of modern government. More likely, it supports a set of the most backward, primitive, foolish and capital-backing ideas that suggest power begets power. Within the context of the a utopian democracy, it’s fairly silly, but within the context of the modern United States, it is facile to the point of deadly.
Anyone who has listened to the show knows that I am a big supporter of Congress flexing its muscles, so I’m hardly anti-democracy. So, to put my view of it fairly succinctly: Even within the context of Congress being the most-direct representation of the American electorate – albeit with gerrymandered fuckups and an increasingly disenfranchised voting public – I think Congress is not expert in a lot of the laws they pass. When it comes to the nooks and crannies of enforcing the law, experts need to be able to do their jobs.
Who do you think is the biggest clown in Congress? It could be Lauren Boebert. It could be James Clyburn or it could be Steve Scalise. It could be any of the many people elected from the absolute worst state in the U.S. or it could be someone from the best state. It could be the very rich woman who says insider trading is OK because members of Congress should be able to participate in the “free market” or it could be the person who thinks – used to think? – the kooky and antisemitic trope that the Rothschilds have space lasers and are controlling the weather. It could be any of the many doofuses who don’t believe Joe Biden won the 2020 election. Maybe you think it’s the guy who seems to fully misunderstand the nature of American elections.
Do you really think those people, even collectively, know the ins and outs of water pollution? Laser conspiracies aside, does Marjorie Taylor Greene strike you as knowledgable on the subject of space policy? Regarding the former, wouldn’t it make sense to have someone at the EPA – hopefully someone who knows what a graduated cylinder is – make the final determinations on the execution of laws regarding water pollution? On the former, wouldn’t you want someone at NASA to execute space policy?
Ultimately, that is the crux of Chevron. Despite their often writing thousand-page bills, Congress does not cover every detail of every law; that’s what the very large administrative state is for. It’s what the immigration judges do and it’s what the dude at the Customs desk does at the airport. They do the work that they’re hired to do, but Chevron gives them discretion to be professionals when there is ambiguity. It is, in my eyes, the very foundation of the administrative state and, thus, the foundation of the very large and very complicated government that serves the American people.
Rome, as the phrase goes, was not built in a day. The judicial branch of government has been actively screwing around with the administrative state for years now. While the Supreme Court established the Chevron precedent in 1984, the judicial branch has been aggressively chipping away at it just since, at least, we started GovExec Daily in 2020. Let’s look at two examples.
The first is more complicated, insomuch as the decision in West Virginia v. EPA, is somewhat narrow and, more than anything, sometimes regarded as a moot point. In short, the EPA brought forward the Clean Power Plan rule in 2015, which addressed carbon dioxide emissions from existing coal- and natural-gas-fired power plants, but by the time the court got to it, EPA had repealed and replaced it.
Nevertheless, the case really digs into the Major Questions Doctrine, which itself is a limit on Chevron. The nature of “major” is hardly well-defined, though “vast economic or political significance” is the operative terminology. To say that said doctrine is bad for administrative law would be an understatement. But, because I’m not a lawyer, I’ll defer to some people who are. Last year, in the Harvard Law Review, Professor Mila Sohoni wrote of the consequences.
The first crucial thing to understand about the major questions quartet is what it did to administrative law. While ostensibly applying existing major questions case law, the quartet in actuality altered the doctrine of judicial review of agency action in its method and content, in ways that will have momentous consequences. To begin with, the quartet unhitched the major questions exception from Chevron, which has been silently ousted from its position as the starting point for evaluating whether an agency can exert regulatory authority.
Harvard? OK. Maybe you hate that place. “A bunch of eggheads in an ivory tower,” you might say. “How about working attorneys? Say, the American Bar Association? Here’s what it had to say about EPA and the very nature of progress (emphasis mine).
The major questions doctrine inherently benefits the status quo, and with industry, the environment, and society evolving at a pace far faster than Congress can legislate with the specificity apparently required by West Virginia v. EPA, the ruling has cast doubt on how agencies will be able to act on the major issues of our day. On the other hand, because the doctrine is to be invoked in only “extraordinary cases,” it is possible that agencies can go about their business, if carefully and cautiously, and courts will invoke the doctrine sparingly, lest the extraordinary become the ordinary.
That really gets to the notion that Congress probably can’t do the parts-per-million math that the EPA scientists need to do. If Congress won’t do it and the agency can’t … the fossil fuel industry is probably going to do it. I’m gonna go out on a limb here and say that the fossil fuel industry is not going to act in the interests of anyone but the fossil fuel industry.
Finally, to get out of the lawyer realm, I’ll kick it to someone who studies public administration. Friend of GovExec Daily and public administration expert Dr. Donald F. Kettl wrote for us (and appeared on our show) about EPA.
The more contentious an issue and the more polarized the politics, the more vague legislation is likely to be. Getting anything passed in Congress means finding language around which the sponsors can cobble together a majority. The easiest way to do that is to agree on something fuzzy. Indeed, ambiguity is often the only road to getting anything done.… [The court’s EPA decision] pushed back on Congress to be clearer and administrators to be less far reaching.
That might be a neat bit of judicial argument, but it’s politically impossible. In fact, if the court holds to that principle, the result is likely to be even more gridlock, because the court will be asking for Congress to do what it can’t do now, if it ever could in the past.
Kettl builds off the Bar Association argument that the EPA decision simply favors the status quo (I go farther in saying it protects capital, but we’re all on a similar page here). How does anything – save extreme backsliding – get done if this is the new normal? Quite simply, it doesn’t. Change happens in the private sector, no one can regulate anything and industry runs rampant, consequences be damned.
The second case is easier to see the threat. About a year ago, the U.S. Court of Appeals for the Fifth Circuit issued a 2-1 opinion in favor of hedge fund manager George Jarkesy and investment adviser Patriot28 (Yes, you read that correctly. One of the plaintiffs is, in fact, “investment adviser Patriot28.”). The case contested the Securities and Exchange Commission’s decision to charge Jarkesy and, sigh, Patriot28 with securities fraud. Basically, Dodd-Frank – a law passed by Congress (the democracy people) in 2010– gave the Securities and Exchange Commission more power under that law to adjudicate these kind of cases in internal proceedings. It is fairly standard post-2008 crash stuff, but nonetheless, Jarkesy and, sigh, Patriot28 were charged and the SEC started enforcing the fraud case in 2013 (a year after the first official allegations of misconduct). I won’t bore you with the rest of the details that get us up-to-date (mostly because it’s above my head), but needless to say, it was caught in courts until 2020, when the SEC brought a fine of hundreds of thousands of dollars onto the heads of Jarkesy and, sigh, Patriot28. They appealed to the Fifth Circuit.
(An aside that probably isn’t an aside: The Fifth Circuit is a famously politically conservative court and Donald Trump only made it more conservative with his appointments. It’s something of an open secret that when conservative groups going court-shopping for national cases… they often end up there. The laws that kept guns out of the hands of domestic abusers? The Fifth Circuit ruled against that. The abortion pill decision that is heading to the Supreme Court? You can thank the Fifth Circuit for that one.)
The Fifth Circuit is not a friend to the administrative state, as per its complete kneecapping of the health agencies in its recent abortion pill ruling, so it will not shock you to hear that it doesn’t care for the SEC’s ability to adjudicate financial fraud, either. In Jarkesy, the court ruled that he and, sigh, Patriot28 didn’t receive their rights under Seventh Amendment (the right to a jury trial), and, among other things, deemed administrative law judges sorta useless. In essence, it ruled that every case determined by an administrative law judge (there are more than 2,000 ALJs) is kinda fake and that each of those cases should get a full jury trial. So, I guess… everyone’s gotta get ready for more jury duty?
The decision appears to argue against or, at least, minimize the role of subject matter experts and the administrative law power of federal agencies. Going back to the EPA case and the broader implications of something like Chevron going away, Jarkesy greatly favors the status quo in light of an administrative state.
While I think the administrative state should exist, I can sympathize with people’s hatred of government bureaucracy: It is hard to deal with and no one likes it. I’ve banged my head against the proverbial wall (that’s not how I hit with the sledge when I was 20) because of the amount of phone calls I’ve had to make when dealing with the D.C. government; I had to spend hours on the phone on multiple calls when I was a victim of identity theft and I had to give the same statement thrice. It sucked! I hate it.
But this isn’t that. The SEC enforcing fraudsters’ fines under a specific law passed in 2010 in reaction to a worldwide financial collapse is not that. The EPA trying to keep the air and water clean is not that. It’s the agencies doing their jobs. If every enforcement action from every ALJ (all 2,000 of them) required a jury trial, the already backed-up judicial system would only get worse and all such enforcement would be at the hands of capital again (high-priced private lawyers are usually more effective than even the best government ones). More bureaucracy, more power in the hands of the rich/powerful.
It’s not as sexy or interesting to see the decline of the administrative state as a slow trickle of degradation going forward. Like Twitter’s slow degradation, the hospice-like nature of the administrative state will be felt in the ways it has been threatened over the last decade. Jarkesy and EPA and the potential elimination of Chevron are all things that follow the failure of the science agencies during COVID-19 or the disaster relief mistakes during Katrina (and Maria). It sets the federal government up for something resembling a pre-Pendleton Act environment, which is going to be a nightmare.
The atrophy of government peaks through via the light shining through the cracks in our society. Unfortunately, the public doesn’t know or care enough to do anything and the people in Congress who were elected to care are only slightly more interested in fixing it.
American government should be seen as a reflection of the populace and it remains so: elevating ignorance, protecting capital and leaving destruction in its path.
This week is Public Service Recognition Week, so we had the Partnership for Public Service’s Max Stier on the show to talk about it and the Sammies.
If I’m being candid, the Sammies kind of bump up against our (GovExec Media Group) awards presentation, but our listeners – and the world, more broadly – kinda need to know about this stuff. It’s a good conversation.
That said, our most popular episode this week has been one about how much people don’t like working with Gen Z.
It’s a tough one because I do think Gen Z – entering the workforce now – kinda got screwed by not being in-person for their post-HS years. The world over the past three years has been upside-down, so the criticism that they don’t have the social skills to be in the workforce is fair, but needs context.
The other stuff? “Too easily offended,” “lazy” and the like are all things that were said about my generation, the generation before and every incoming generation for time immemorial. It’s just easy for hiring managers to say that now because it’s Gen Z’s time in the box.
The grass at my building is way overgrown, so we’ve taken to walking down the street so that Lulu can do her business and not get any weird bugs on her (hasn’t happened yet, but you can never be too careful). With her bad knees, she’s not a particular fan.
A Recommendation: Sports Outside
My softball year started yesterday (for context: I used to play in multiple leagues and now only play in one. I love softball.) and I cannot tell you how much I enjoyed it. Even with a rainy afternoon, I had a great time being out there, doing something I love, moving around and hanging out with people in a sports context.
This comes on the heels of spending my Saturday at the Washington Spirit match. The team had an all-you-can-eat/bottomless drinks brunch deal and I took advantage. My friend Lisa and I drank too much, ate too much and enjoyed a Spirit win while I wore a stupid football scarf and watched my favorite player score.
It’s spring. Go outside and move around.