Progressive don’t see the administrative state as a threat to liberty; they see it as vital to their ideological project.
In the bump-stock case from two weeks ago, the Supreme Court struck down an illegal rule that the Trump administration imposed — and progressives were outraged. The three Democrat-appointed justices ruled in favor of keeping the rule in place, and progressive legal commentators agreed with them. As I wrote at the time:
This case forces the Left to choose: Is it more pro-big-government or anti-Republican? And the answer is clear: it’s pro-big-government.
The bigger threat to the progressive project in the long run is to have originalist judges interpret the law for what it actually says, rather than what progressives wish it said. If that means siding with a Republican every once in a while, so be it. Progressives know that, on average, they will be the beneficiaries of a bigger, more powerful government.
We’re seeing the exact same dynamic today in response to Loper Bright, the case that overturned the Chevron doctrine. The rule being challenged in that case was promulgated in 2020, under the Trump administration. The National Marine Fisheries Service essentially required fisherman to pay for monitors on their own boats to ensure they were following regulations, at a cost of $710 per day.
Fishermen challenged this rule, saying the agency did not have the authority to issue it. Lower courts ruled that it did and that they would have to defer to the agency’s interpretation of the law under Chevron.
The Supreme Court, in a majority opinion by Chief Justice John Roberts, said Chevron is now overruled and courts should be the ones interpreting the law, not the agencies themselves. The previous deference to agencies’ interpretation was not supported either by Article III of the Constitution or by the Administrative Procedure Act (APA), which was passed in 1946 to limit the power of executive-branch agencies, Roberts wrote.
The Supreme Court has not used the Chevron doctrine since 2016, but lower courts were still bound to follow it. That’s why it was important for the Supreme Court to overrule it, so lower courts where most of these challenges are heard will now be able to interpret the law as the Constitution and the APA intend.
If the Left wanted to, it could very easily frame this case as a victory for the little guy against an overbearing action from the evil Trump administration. No matter who is president, the administrative state pushes around individuals and small businesses, who often have no easy recourse to a federal court that could get them relief. Today’s decision will make it easier for federal courts to provide that relief because the government no longer has an auto-win based on Supreme Court precedent.
As Justice Neil Gorsuch wrote in his concurring opinion, “Chevron’s fiction has led us to a strange place. One where authorities long thought reserved for Article III are transferred to Article II, where the scales of justice are tilted systematically in favor of the most powerful, where legal demands can change with every election even
though the laws do not, and where the people are left to guess about their legal rights and responsibilities.”
Instead, the progressive justices are outraged, and progressive commentators are following their lead. They don’t see the administrative state as a threat to liberty; they see it as vital to their ideological project. And if that means every once in a while a Republican administration will make a rule that bullies some fishermen, so what? That’s a price worth paying for keeping the administrative state powerful.
If a Trump victory in November — which after yesterday’s debate seems likelier — really presents a threat to democracy, then the Left should be cheering efforts to reduce the executive branch’s power. But as Charlie noted yesterday, it consistently opposes those efforts in the most strident terms.
Progressives believe that the government is a helper of the little guy, not a hindrance. Limits on government power, then, limit the help the little guy can receive, rather than allowing the little guy to live his life as he sees fit. That’s a difference in political philosophy that supersedes red–blue partisanship. It is more vital to the Left that the administrative state have power than that Republicans not have power. That should make clear to conservatives that reducing the power of the administrative state through deregulation and agency reform is one of the best ways to counter the Left.