Seriously! Yeah, I know I’ve said a lot of mean things about Ramesh in the past—because, well, not to toot my own horn or anything, but they don’t call me “Mr. Truth” for nothing—but recently he wrote a column, Not even the Supreme Court can make Congress do its job, which, I’m pretty sure, is entirely accurate. Here’s Ramesh telling the truth (for a change) regarding the “controversial” Chevron rule, a Supreme Court ruling that said courts should generally defer to federal bureaucrats when interpreting the laws passed by Congress:
If the Supreme Court keeps that [Chervon] rule, opponents of Chevron say, we will be one step closer to “tyranny”: Government bureaucrats will be able to determine the limits of their own authority. If the justices instead discard Chevron, they will be accused of voting to “gut” federal regulations: Experts with specialized training will have to face second-guessing from judges who know little about their fields.
Neither alternative looks attractive because there is no perfectly satisfying solution to the problem of how to resolve ambiguities in the law. Put either agencies or judges in charge, and the result might be abuse. In the 1980s, Supreme Court Justice Antonin Scalia became a cheerleader for Chevron based on the practical judgment that there was more to fear from freewheeling judges than from agency personnel subject to presidential control and political pressure. [Chevron was decided before Scalia joined the Court.]
So, Ramesh actually states both sides of an issue fairly, instead of, well, lying out of both sides of his mouth, as Trump-enabling toadies of Ramesh’s ilk are so often wont to do. But Ramesh’s truth telling doesn’t stop there. He gets off another good one that I totally like, pointing out that if Chevron opponents think that reversing Chevron is going to force Congress to do its job and craft meaningful legislation, well, that’s not going to happen:
Congress doesn’t just fail to stand up for itself. It deliberately passes vague laws that pass the buck to the other branches of government, allowing legislators to take credit for acting on some goal — clean air, help for veterans, you name it — without having to take responsibility for the specific decisions needed to pursue it.
Right on, Ramesh! Then he goes on to say
Conservatives have turned against Chevron because judicial power doesn’t scare them as much now that they wield it — and also because letting agencies interpret the law for themselves seems to have abetted this ongoing breakdown in the separation of powers. Unfortunately, overruling Chevron is unlikely to force legislators to step up. The courts have repeatedly weakened the ruling without having any such effect.
Yeah, that’s true too, but there are just a few bits that Ramesh left out. First, Justice Scalia’s championing of Chevron was part of a larger conservative agenda, the “unitary executive”, the notion that the entire executive branch of the federal government should be the expression of the president’s will. He was the one—the only one—member of the executive branch who was elected, after all—and the entire executive branch, therefore, should be an expression of his will, and his will alone. Supposedly “small government” types made this argument, of course, because back in the day Republicans assumed they would “always” control the presidency, barring one-term freak occurrences like Jimmy Carter, who was surely a one-trick pony of the sort that would never surface again. But conservatives couldn’t control a federal judiciary stocked with almost fifty years of liberal Democrats and moderate Republicans. Let’s give Ronnie and his appointees a free hand to do their damnedest!
But now the shoe is on the other foot: Republicans control the judiciary, more or less, and don’t control the presidency, so they want to limit the bureaucracy and elevate the power of the judges. Sure. But here’s the thing: the Supreme Court is supposed to be applying a dead Constitution, whose one truth never changes. If the Constitution “said”, in 1984, when Chevron was decided, that courts should defer to bureaucrats, well, it should say that now. We’re not supposed to reverse our reading of the Constitution whenever the political winds happen to shift, even though, as Ramesh unconsciously admits, this is exactly what “conservatives” are doing.
It’s almost as if the whole cult of “originalism” à la Scalia were just another political hustle cooked up to serve the exigencies of the passing moment, to be used—and to be discarded—entirely at one’s convenience. In fact, when you think about it, it almost seems as if Antonine Scalia was just one great big fat hypocrite from the get-go. It’s “funny”, when you think about it like that! “Funny” but true!
Afterwords
Another “funny” thing about Chevron was that it was not really a “conservative” decision. The two Reagan appointees on the Court at the time, William Rehnquist and Sandra Day O’Connor, did not take part in the decision, and neither did aging liberal Thurgood Marshall. It was a unanimous, 6-0 decision, decided by four Republican moderates (Burger, Blackmun, Powell, and Stevens), one moderate Democrat (White), and one liberal Democrat (Brennan). Scalia “seized” on it as part of his “construct” known as the “unitary executive”.
UPDATE
What if it's a question, not of what the Constitution says, but what a statute says? Well, the meaning of a statute doesn't change either, unless Congress—and not the Supreme Court—changes it.
