Vague laws give extreme power to courts and bureaucrats. Where is Congress?

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Vague laws give extreme power to courts and bureaucrats. Where is Congress?

On Ed

Jonah Goudberg

January 23, 2024

The Supreme Court heard oral arguments last week in a case about fishing boats


and it could mean the end of government as we know it. I hope it is.

The legal questions may not be so fascinating. What is fascinating, however, is how the legal issues help explain why our government and politics are so dysfunctional.

First, the facts of the case: In 2020, the National Marine Fisheries Service issued a new requirement to prevent overfishing. Federal inspectors would be placed on commercial fishing boats to ensure no one exceeded their quota. Reasonable. But the government said the companies would have to pay for the monitors.


at a cost of $700 per day. Loper Bright Enterprises, a New Jersey commercial fishing company, has filed a lawsuit arguing that Congress never intended such a thing when it wrote the relevant law some 44 years ago.

The question before the Supreme Court, posed in Loper Bright Enterprises v. Raimondo and a companion case, Relentless vs. Department of Commerce, is whether regulators can create rules that Congress may never have intended. Under a doctrine called Chevron deference, the answer since 1984 has been yes if the agency’s interpretation is reasonable.

If you want to score all this as straight

vs vs

If you miss anything else, your scorecard will become messy. That’s because conservative justices, including the late Antonin Scalia, once defended Chevron’s deference. Now liberals are leading the charge in favor of giving the executive branch leeway, warning that toppling Chevron could lead to judicial activism. Agencies know things that courts don’t, Justice Elena Kagan said during oral arguments, and that’s Chevron’s foundation. Chevron is a “doctrine of humility,” she added. The Center for American Progress, a liberal think tank, calls the attempt to unwind Chevron a judicial power grab.

I think there are good arguments on both sides. It is clear that in some circumstances courts should defer to experts from, for example, the Nuclear Regulatory

Agency Commission

or the Food and Drug Administration, especially in highly technical areas beyond judges’ expertise.

On the other hand, there are times when regulators might exceed their powers under the law or the Constitution, and judges have every right and obligation to intervene. I suspect that if Donald Trump becomes president and fills regulatory agencies with MAGA fanatics, many liberals will worry that a judicial power grab will beg the courts to intervene.

And remember, in 2005 the court had a majority opinion from Justice


Thomas, governed in the National Cable & Telecommunications Assn. vs. Brand


is given free rein to change what passes for expert advice every four to eight years. In other words, all the talk about following the science sounds great until new political appointees get to decide what the science says.

This comes to the part that I find fascinating. The question of whether the judiciary or the executive branch should have the final say on regulatory policy ignores the elephant in the room: Congress should

first word


If Congress wants to pass a law requiring fishermen to pay for monitors on fishing boats, it can. Likewise, it can pass laws to cancel student debt, legalize marijuana and provide free clarity

speech issues for social media, granting amnesty to illegal immigrants, building a border wall, and a thousand other things.

But that’s not true.

Instead, Congress does one of three things: 1) Nothing at all 2) Write deliberately vague legislation and push tough decisions to Cabinet secretaries and administrators, or 3) Lobby the executive branch to do things Congress is too cowardly to do yourself.

Some of these cases take the form of unconstitutional executive orders. In short, the real problem is that the courts and the executive branch are stuck shaping public policy because Congress has sidelined itself.

It is difficult to exaggerate the extent to which this has disrupted our politics. Congress is the most democratic branch of government, which is why the founders granted it the most power. It is the place where political differences should be fought out. But by absolving ourselves of that responsibility, we have turned presidential elections into de facto parliamentary elections in which one party gets to make the law by regulatory fiat. This in turn has pushed the courts to go beyond their traditional role, as the vagueness of the law has become a central feature and not a shortcoming of the law.

The Supreme Court probably can’t let Congress do its job, but until Congress takes itself seriously, courts and bureaucrats will be stuck with problems that are not their job to solve.



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