Senator Ted Cruz is in the process of building a coalition of lawmakers to urge the U.S. Supreme Court to overturn a nearly four-decades-old precedent that directs courts to grant deference to governmental agencies’ interpretations of ambiguous statutes, a ruling that Cruz said has empowered unelected bureaucrats over elected members of Congress.
In an interview with National Review, the Texas Republican said he is preparing an amicus brief in the case of Loper Bright Enterprises v. Raimondo, which the court has agreed to hear in its next term.
The case involves Loper Bright Enterprises, a New England-based family-owned herring-fishing company, which is challenging a National Marine Fisheries Service rule that requires fishing vessels to have a government monitor on board to track compliance with federal regulations, and for the fishing company to pay the monitor’s salary.
Loper Bright argues that the agency doesn’t have the authority to force them to pay for the monitor, and the law it relies on is silent on the matter. A divided D.C. District Court of Appeals panel agreed the rule is ambiguous, but granted deference to the government agency, citing the 1984 decision Chevron USA Inc. v. National Resources Defense Council. That ruling established what is known as the “Chevron deference,” a doctrine of judicial deference to an administrative agencies’ reasonable interpretation of an ambiguous statute.
“Over time, I think it has proven to be a very harmful precedent, because it shifts decision making away from democratically elected members of Congress to the permanent members of the bureaucracy,” Cruz said.
Cruz, who argued nine cases before the Supreme Court before he was elected to the Senate in 2012, said that too many elected leaders — both Democrats and Republicans — have allowed the regulatory state to usurp decision-making authority that is Congress’s responsibility.
“If the voters back home in Texas are ticked off at an idiotic rule that comes from the bowels of the Biden administration, there’s nothing they can do to fire that bureaucrat. And frankly, that bureaucrat does not give a flip what a small-business owner or hard-working family in Texas believes or how they are hurt by the rules they are decreeing from on high,” Cruz said. “Conversely, the elected representatives from Texas are accountable to the men and women of Texas. That is precisely how the framers designed the Constitution, and that’s where this consequential decision-making should occur.”
A former clerk for former chief justice William Rehnquist, Cruz said amicus briefs — particularly well-written briefs that make a compelling argument and briefs by members of Congress — “can have a real impact.”
“I’ve got some reasonable degree of confidence that there will be at least five justices who will agree and will overturn Chevron,” Cruz said.
Cruz, the former solicitor general of Texas, has a long history of filing briefs in consequential Supreme Court cases. He recently led or co-led congressional amicus briefs in the Students for Fair Admissions cases, in which the court struck down racial preferences in college admissions, and in the religious liberty cases 303 Creative v. Elenis and in Groff v. DeJoy. In those cases, the court agreed with Cruz that the government can’t compel a Colorado web designer to express views contrary to her religious beliefs, and it must accommodate a Christian postal worker who objects to working on Sundays. Cruz called all three “landmark decisions.”
Cruz said the affirmative action ruling, which struck down race-conscious college admissions aimed at boosting black and Hispanic student enrollment at Harvard and the University of North Carolina at Chapel Hill, “is a victory for the rule of law” and a victory for merit. A recent YouGov survey found that Americans support the ruling by a roughly two-to-one margin.
“But the reaction from the left is extreme dismay,” Cruz said.
Former House Speaker Nancy Pelosi said the ruling “does violence to justice and fairness in America.” Far-left representative Ilhan Omar, the “Squad” member from Minnesota, accused the court of “upending the 14th amendment to uphold racial hierarchy.”
Cruz, a passionate defender of religious liberty, called the ruling in 303 Creative “an incredible victory for free speech.” In that 6–3 ruling, the court established that the Colorado Civil Rights Commission could not require a graphic designer to violate her religious convictions by mandating that she create wedding websites for same-sex couples.
“The Supreme Court rightly held that the government cannot force her or any American to engage in expressive speech and force you or me or any of use to convey the message the government prefers,” he said. “The First Amendment does not allow that.”
In the wake of those decisions and last year’s ruling in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and returned abortion policy to the democratic process, Cruz said the Left has resorted to “waging a relentless war trying to tear down the Supreme Court.”
To combat the court’s conservative majority, Democrats have engaged in a multifront attack on the court’s legitimacy, with some suggesting that the court be packed with more leftist justices. President Joe Biden has said this is “not a normal court.” ProPublica and other left-wing media outlets have been publishing reports questioning the ethics of the conservative justices.
“It is cynical. It is shameful,” Cruz said. “But the Left is interested only in enforcing its policy preferences on the American people. And today, congressional Democrats do not care at all what the Constitution provides. They do not care at all whether their policies violate the First Amendment, violate free speech, violate religious liberty, violate the Second Amendment. They don’t care about that at all.”
Left-wing politicians, he said, have not been able to enact some of their preferred policies through the democratic policies, so they had grown accustomed to getting “unelected justices to decree those policies instead.”
“Now, the current court, we have a majority of justices who take seriously their oath to be faithful to the Constitution,” Cruz said, adding that the Dobbs decision last June has attracted “the greatest fury from the Left.”
“The reason the Democrats are so unhappy with that decision is that in many states, particularly red states, the voters have decided they want to impose significant restrictions that protect the right to life, and Washington Democrats do not want any restrictions,” he said. “They don’t want to prohibit partial-birth abortions. They don’t want to prohibit later-term abortions. They don’t want parental consent or parental notification. And they know that if it’s up to voters, their policy agenda is not going to be adopted.”