OPINION: Budd-Falen; Really? The End of Democracy as we Know It?

^{Reprint: Tri-State Livestock News}

Attorney Karen Budd Falen is hopeful that the Supreme Court will act to “pull back the administrative power of the un-elected federal employees.”

Really? The End of Democracy as we Know It?

The headlines are funny. The U.S. Supreme Court is considering a ruling that may pull back the administrative power of the unelected federal employees and force that power into the hands of Congress. But the pundits posit the end of America if decisions directly impacting the American citizens are left to the elected representatives we voted into office. As I recall from my government class at Big Piney High School, the purpose of elected officials was so they could make the laws. Making laws was not the job of the bureaucracy.

The cases before the Supreme Court arose out of the federal agencies making regulations that “interpret” Congressional statutes. Currently, when Congress passes a law, it is so full of holes a Mac truck could drive through it. In 1984, the Supreme Court held that in matters interpreting federal statutes, courts were to defer to the federal bureaucracy’s policy interpretations. It was called “Chevron deference” and while there are extremely limited circumstances when someone could challenge Chevron deference, in my experience the courts would just defer to the agency rather than letting other experts testify. I cannot tell you the number of cases I have brought opposing a federal regulation that was going to adversely impact someone’s property rights and the government counsel would just claim “agency deference; ” end of the discussion. Even if my expert was eminently qualified to offer an expert opinion, they would never be heard because the court would defer to the agency.

I am not saying that all federal agency regulations are wrong, but for government attorneys to not argue the substantive merits and just say the agency is right merely because it is the federal agency is not how our system should work. If after all the evidence is reviewed and the legal arguments are made, the agency is correct, so be it. But to not even allow the American citizens to make an argument is wrong and I am thrilled that this Supreme Court is reconsidering Chevron deference.

You know, what else amazes me is that many environmental groups have lined up against the ability to challenge federal agency regulations and supporting “Chevron deference.” The Natural Resources Defense Council states that federal agencies should get to make “policy choices,” because “Congress is not equipped to micromanage the day-to-day operation of the legislation it passes.” EarthJustice believes that “statutory decisions that require policy judgments [should be left] to politically accountable legislators and executive branch agencies.” There are approximately 4000 politically appointed individuals who come in with any given President to manage 2.95 million federal government employees. With that kind of ratio, rarely is the bureaucracy politically accountable. I am not saying all federal employees are politically motivated, but the math doesn’t add up.

And consider the whiplash that the American citizens have to go through every time there is a change from a liberal to a conservative President. You see it all the time. The new person just revokes the old person’s rules and writes their own. I think either Congress stating exactly what policy choices its wants or the courts taking a much more active role in interpretating what the Congress has ordered is better than the stark changes from the Obama to the Trump to the Biden regulatory regime. In the real world, we feel like a tennis ball at Wimbledon.

Leveling the playing field and giving litigants (whether representing the conservative or liberal view) a level playing field against the federal agencies is exactly what this Supreme Court should do. Forcing our elected representatives to pass clear legislation and setting the policy to implement that legislation is not the end of democracy—it is democracy.

P.S. And to my friends who are complaining that we don’t have a democracy but a republic, I know, and the point is still the same.

–Karen Budd-Falen, Budd Falen Law Offices

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