Should the Food and Drug Administration be allowed to approve whatever drugs it wants however it wants because the FDA is the expert on drug safety and efficacy?
Should Congress defer to the Centers for Disease Control and Prevention and let stand a rule that is nonsensical and harmful?
DOBBS DECISION CREATED 'ABORTION DESTINATIONS' IN UNLIKELY RED STATES
And here’s the general question: should executive branch agencies have broad authority to make whatever rules they want to accomplish their aims, as long as Congress hasn’t explicitly prohibited it?
For too many politicians, regulators, and commentators, the answer is “yes.” “Believe in Science” or “Trust the Experts” has come to mean that the executive branch can make its own law. Put less provocatively, much of the political class rejects one basic principle of the Constitution, which is that Congress is the boss of the government.
The Supreme Court is taking up a new case regarding some fishermen, which brings into question the Chevron doctrine — a rule of jurisprudence whereby judges give broad leeway to regulators when Congress’s statutes are ambiguous. If you believe the reaction from some on the Left, it’s a secret Federalist Society plot to bring about a deregulated libertarian utopia — a “war on federal regulation,” as Democratic commentator Ian Milhiser puts it at Vox.
The case in question, Loper v. Raimondo, is not a war on regulation. The fishermen don’t really even take a side on the question of more regulation or less. In fact, the court isn’t even considering whether or not to discard the Chevron doctrine. At issue is a narrow question: Can a federal agency do something that Congress never authorized it to do, as long as Congress never explicitly prohibited it?
Congress authorized the National Marine Fisheries Service to create fishery management plans and to place monitors on fishing boats to enforce their regulations. In 2020, the NMFS began charging the fishermen for the pleasure of hosting this regulator on their boats, even though Congress definitely never gave the NMFS the authority to collect fees from the plaintiffs.
What the Biden administration argues today is that Congress generally gave the NMFS the authority to regulate these boats, never said the NMFS couldn’t collect these fees, and that the NMFS believes that collecting these fees is necessary for doing its job.
That is, they are asserting that the law’s silence on the fees creates an ambiguity, and that under the Chevron doctrine, the courts ought to defer to the agencies on how to interpret ambiguous language.
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The fishermen argue back: “Silence is not ambiguity, especially when the extraordinary power of making the citizenry pay for the cost of regulatory enforcement is expressly granted in three limited and obviously inapplicable circumstances.”
Some of this is legal finery, but the broader question is the prior one: Who is the boss? Is it the regulators, or the elected representatives of the people? Sadly too many of our elites want to rest lawmaking power with the bureaucrats.