Two very interesting SCOTUS decisions
One on "Chevron deference". Another on the worst kind of "camping".
Two and a half months ago, I wrote that the Supreme Court of the United States (SCOTUS) was considering striking down the regime of “Chevron deference” we’ve been under for 40 years or so.
The administrative state, as comprised of a hive of regulatory agencies, has ruled over us for over a century, but the 1984 case of Chevron v. Natural Resources Defense Council codified the powers of these regulatory agencies into law.
Under this doctrine, in any place that legislation is in any way unclear or ambiguous (of which there are millions of examples) the regulatory agencies’ interpretation was held to reign supreme. Reasonable, unreasonable, bat-shit crazy, whatever, the courts were supposed to just rule in favor of the regulatory agency no matter what.
Or (in legalese) the Court held in 1984 that in any place where a federal “statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”
With these words, the unelected “4th branch of government” known as the regulatory state was enshrined into law. While that seems like a bad thing, once a thing is codified, it can be un-codified, which is what has now happened.
In a 2023 case (Sackett v. Environmental Protection Agency) SCOTUS historically ruled that the EPA’s interpretation of marshlands as being governed by the Clean Water Act is “not reasonable”, thereby making it illegal for them to regulate the Sackett’s property.
With those two little words, every other regulatory body’s “reasonable” interpretation of Congressional intent was thrown into question. And with SCOTUS’s decisions on Relentless Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo, the doctrine of “Chevron deference” is officially dead.
These two cases involved a truly grotesque atrocity committed by the regulatory body that governs US fisheries. These “4th branch of government” ghouls were forcing fishing boats to pay human monitors to come aboard their vessels while they were out fishing, ostensibly to ensure that the crew were obeying all regulatory edicts involved with the business.
Naturally, the fishing companies sued over the matter, complaining that it was insanely costly and burdensome. Lower courts upheld the regulation. SCOTUS, on the other hand, heeded plaintiff’s argument that Chevron deference is unconstitutional, and they struck it down.
Magnificent. As Justice Clarence Thomas wrote in a concurring opinion, “The Court finally ends our 40-year misadventure with Chevron deference.”
As designed by our Constitution’s framers, we are supposed to have three co-equal branches of government. For a long, long time the Executive branch has dominated the Legislative and Judicial.
This Supreme Court decision will help reduce that imbalance.
In that same batch of rulings just released by SCOTUS was another (Grants Pass v. Johnson) that will untie the hands of local governments that have been prevented from dealing with the horrible homeless crisis that is plaguing our country.
The small Oregon city of Grants Pass tried to ban homeless people from sleeping and camping in public places. Lower courts said they didn’t have the right to do so. SCOTUS disagreed.
Yay.
This ruling only changes the law officially in the 9th Circuit Court of Appeals, which consists of nine western states (including CA and OR). That’s also the region where the bulk of America’s homeless population lives.
Hopefully that’s a large enough area for us to see a wide range of approaches to the problem being taken in various places. We could use some “laboratories of innovation” here. We don’t have a good idea how to handle this crisis.
Writing for the majority opinion, Justice Neil Gorsuch said, “Homelessness is complex. Its causes are many.” He continued, saying that federal judges do not have any “special competence” to decide how cities and towns should deal with this.
For far too long, many local governments have done very little to protect the interests of taxpayers and “normal” citizens from the filthy hordes of “unfortunates” who prefer camping on public sidewalks and public parks and public schools (see the picture) while doing drugs… and little else.
Some people fall into homelessness through no fault of their own, of course. But on the margins, if you incentivize bad behavior, you get more of it. Some people just like being drugged out bums more than they like getting a job and making something of their lives.
If “we” allow them to camp out, do drugs, and urinate and defecate in “the commons”, then we will get more of such behavior. It’s basic economics. Whatever you incentivize, you get more of. (Brian D. O’Leary and I cover this issue in much greater detail in Natural Order Podcast, Episode 15.)
So, call me a tyrant, but I think this was the right decision. I’m glad they made it. I’m not necessarily going to be in favor of absolutely every law that will be written and enforced across the country as a result. But it can’t be the rule that some people are allowed to treat “public” property like their own bedrooms and toilets.
That’s an absurdity we have been suffering for far too long.
Naturally,
Adam
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