Thursday, January 18, 2024

It may be that yesterday’s oral arguments before the United States Supreme Court will turn out to be some of the most important in recent decades because the Supreme Court’s conservative majority, yesterday, at over three hours of open hearings in terms of oral arguments appeared to be ready, at least, to consider discarding one of the most important if damaging precedents set by the Supreme Court over the course of the last century. That would take us back to 1984 in a case known as Chevron versus the National Resources Defense Counsel. In that case, the Supreme Court of the United States developed a new doctrine and that doctrine became known as deference because of the name of the case, it became known as Chevron deference.

The Supreme Court 1984 said that, “If the law is ambiguous in any respect, a federal agency has the right to be presumed competent and acting authoritatively if it acts reasonably upon the law.” Now, this became a major engine for the development, indeed, the explosion of what we would call popularly the federal bureaucracy, but more specifically it is the growth of the administrative state. And this leads to some of the biggest issues of worldview consideration, and we’re going to go deep into those issues today. Again, more than three hours of oral arguments, and this has been building for a number of decades, almost as soon as the Supreme Court handed down that precedent in 1984, conservatives understood that our very constitutional system of government is at risk.

We have federal administrative agencies sometimes with what amounts to police power, acting as if they have the full authority of the law and even promulgating policy with the effect and status of law that Congress has never adopted, no president ever signed into legislative authority. We are looking at the rise of what amounts to a fourth branch of government and this is an unelected branch. Now behind all of this is a fascinating story that takes us not back just in 1984, but frankly takes us back to the 19th century and takes us to Germany. And here’s where the worldview issues get really thick and really fascinating.

If you go back to the rise of modern professional government, the place you would go is not the United States of America. You wouldn’t go to Great Britain, you would go to Prussia. Prussia that largely became the center of Germany with the unification of Germany in the 19th century. Prussia was the site of the growth of the administrative state. It was the locus of new rational government under the cult of efficiency and order. And you can understand why those German ideals were translated into a new understanding of government. Bismarck famously Germany’s Iron Chancellor became the head of a government that was vastly expanded, went far beyond what government had done in the past.

And there was, added to all this, the cult of professionalism and efficiency. The governing rule of Bismarck was that Germany could be held together and become all that it was destined to be as the greatest state in Europe and perhaps in the world if there could be an efficient, powerful central government put into place that would develop policies that were rational and reasonable and basically beyond the political process. That’s the most important issue, beyond the political process. If you go back to your understanding, the classic understanding of how laws come to pass in the United States, you have to have both houses of Congress pass a bill. The bill is then sent to both houses, give their affirmative consent. It is sent to the President of the United States who assigned the bill into law.

Every one of those figures, by the way, every one of those officers of the federal government, every one of those congressmen and senators and the President of the United States is an elected official. The people elect those political officers who fulfill that responsibility and going all the way back to elementary school, you can remember the chart that showed you how a bill becomes a law. Now, that chart is still basically sound. It shows in our constitutional form of government, by the way, how a bill becomes a law. But Bismarck’s ideal was that you could go around the political process and create a political elite, an administrative elite that would handle these things so you wouldn’t have to go through all the messy process of legislation.

Now, of course, there was a lot more to this. For instance, you had professionals. They were professionals in the, say, department of the Treasury or the Department of Defense as you would have in the United States. You have professionals who would man those offices and would fulfill those roles and would promulgate the policies. The reality is however, that those policies were often treated as if they had the very force of law, but they were not the products of legislation. They had not gone through the political process. There was no open vote and no president or, for that matter, chancellor or Prime Minister signed anything into law, not even a monarch. In other words, you had unelected professionals who were increasingly running the government, and that’s exactly what Bismarck wanted in Germany, and that’s what he got.

Now, of course, that centralization of a professional government in Germany led to all kinds of things, not only in the 19th but in the 20th century. But behind that was another huge worldview development that is worth our note, and that has to do with the German philosopher Hegel. George William Frederick Hegel was one of the most influential philosophers of the entire Western tradition, but in particular in the modern age. Hegel believed in an unfolding spirit that would be encapsulated by a nation, and that nation would become increasingly powerful, increasingly centralized, increasingly representative of the spirit of the age.

That was a progressivist, very liberal understanding of how power would develop in a central state, and it will become the expression of the will of the people. Now, Hegel’s remembered for many other things. All I need to say is thesis, antithesis, synthesis. But the most important thing here is the unfolding of history towards an inevitable end that would mean more centralized government and in a positive sense according to Hegel, a more professional government, a more efficient government. But you could say, “That’s Germany. We’re talking about Hegel, we’re talking about Bismarck.” Here we’re talking about the Supreme Court of the United States of America.

Well, in a very real sense, the bridge between Bismarck and Hegel, the bridge between Germany and the modern United States was President Woodrow Wilson. President Wilson, when he was a political scientist, and both a professor and president at Princeton University, he developed a theory of government very similar to the Bismarckian state, very similarly rooted in the philosophy of Hegel. A very liberal philosophy of the unfolding of history towards an ever more powerful state. And that’s exactly what Woodrow Wilson wanted. As a matter of fact, even as you see Woodrow Wilson named in terms of American history as one of our most influential presidents, people often do not recognize that he intentionally sought to redefine the government of the United States of America.

Like Bismarck, he wanted to centralize the federal government. Like Bismarck, he wanted to create an administrative state. Like Bismarck, he wanted to remove a lot of federal policy in the making that policy from the political process. Now, you can understand, at least as we try to understand someone like Bismarck or someone like Woodrow Wilson, they were frustrated by the inefficiency of politics. And we see that right now in American politics. We see it in the United States Congress. It is very difficult to get any serious legislation through. But here’s the thing, even if Congress is not all that efficient, it’s the only Congress we have and every single member of that Congress from representatives to senators is elected by the people and the President of the United States is an elected official. They are accountable to the public.

And here’s where a basic American instinct, which I will argue is deeply rooted in a Christian moral instinct, the instinct should be that you want a more inefficient government that is actually elected and accountable than a very efficient government that is beyond electoral accountability. The last thing we should want is the rule by an elite of bureaucrats, but increasingly that’s what we have in the United States. But you say, “Why was all of this before the Supreme Court just this week?” Well, it has to do with herring, and by that I mean fish.

The set of cases that arrived at the Supreme Court and was the subject to the oral arguments yesterday has to do with an appeal to the United States Supreme Court by those who were very frustrated with the rules promulgated by the National Marine Fisheries service that’s a part of the federal government. It’s a part of that administrative state. One of the policies promulgated was that herring fleets would have to have a federal official on the fleet in order to check the fact that all of the regulations were being followed and those who were conducting the fisheries would actually have to pay for that federal bureaucrat to be on the boats, able to observe that everything was being done according to the policies promulgated by the National Marine Fisheries Service.

And thus the fisheries were being told they had to pay for the federal bureaucrats to be there in order to follow the policies that the bureaucrats had themselves promulgated based upon legislation that never specifically said anything about what was going on here. And this has been going on for decades. The administrative state in the United States has grown. Indeed, it has exploded beyond anything Woodrow Wilson could ever have dreamed of. You have hundreds of thousands of pages of promulgated policy. Sometimes, indeed, more often than not these days coming with the force of law, which is to say that you have these federal agencies handing down policies and you can face criminal and certainly civil penalties if you violate those policies, but they weren’t adopted by Congress.

Nothing specifically related to many of these issues was even contemplated by Congress. So now let’s just ask ourselves, why would Congress have allowed this to happen? Well, it’s because nothing evidently makes legislators happier than not legislating. Nothing makes them happier than not having to deal with many of these issues. Not having to promulgate all these policies, not having to take responsibility for them, not having to face the voters and say, “Yes, I voted for that law, that policy, that particular program.” Politicians are famously very glad to have someone else do all of this and bear the blame for it. Now, I’m not just throwing politicians under the bus here. I’m simply saying that there’s a logic that we can understand.

The other thing is that you have members of Congress who would go, “What do I know about the herring industry? How am I supposed to contemplate establishing legislation having to do with herring or, for that matter, any other fish?” But that actually is the responsibility of Congress. It is the responsibility of elected officials. Our government is very complex. The policies cover things that no human being could be able to imagine individually, much less to master individually. But Congress has deferred to the administrative state for far too long. And that administrative state has taken on enormous power, and this is exactly what progressives or more liberally minded persons in politics want. They want effectively a fourth branch of government that is unelected and unaccountable to the people.

Now, you also have to ask the question, “Why are we here at the Supreme Court? What happened in 1984?” Well, that Chevron case in 1984 was decided with a conservative majority on the court that said that if there is a question about the text of the law having to do with the policy or the program adopted by a federal agency, the agency is to be considered as having the authority unless its position is unreasonable, having the authority to set this policy and to enforce it, this is known as Chevron deference. In other words, the Supreme Court of the United States said that if there is legislation that’s unclear, and Congress hasn’t said that the agency can’t do this. And if its position is reasonable according to whatever the court thinks is reasonable at the time, then courts should defer to the bureaucrats. And that’s exactly what’s happened. Chevron deference has actually led to the vast empowerment of this unelected fourth branch of government.

Now, here’s another twist in the tail, and this is absolutely fascinating. I said it was conservatives who were a part of that development of the Chevron deference in 1984. Why would conservatives have done this? Conservatives are the non-Hegelians when it comes to the expression of the state. You also have conservatives who don’t want to see the administrative state empowered in this way. So why did so many conservatives support that Chevron deference back in 1984? And why, for example, did the late US Supreme Court Justice Antonin Scalia become the main proponent of Chevron deference back in 1984? Well, that’s because conservatives in the 1960s, 70s and 80s, became very concerned about the growth of the federal judiciary and overreach by federal judges.

You had federal judges drawing maps of city bus routes and things like that, and the conservatives on the Supreme Court and conservatives looking at the federal courts in general said, “You have an expansive court here. The court is not to be invested with that kind of authority.” And so you had conservatives in the Reagan Revolution who said, “Look, we need to limit the federal courts taking on themselves to legislate.” The problem is, and Antonin Scalia came to this conclusion himself, what they’d actually done in 1984 was to create this fourth branch of government and empower it beyond anything that was healthy.

Antonin Scalia himself came to rue much of the logic of Chevron deference, a very interesting development. Just in recent days, one person who has experience in the bureaucracy, a former United States Secretary of Labor wrote a major article in the Wall Street Journal arguing that Chevron deference should be, if not reversed, then at least very significantly reduced. He referred to that Chevron deference as a mistake. The thing that makes that important is that the writer of the article was the son of Antonin Scalia. Former secretary Eugene Scalia made clear that when he was the Secretary of Labor in the Trump administration, well, Chevron deference was pretty convenient to a sitting cabinet secretary.

You had the ruling that the federal courts should defer to the policies and judgments of these federal agencies. He was head of one of them, and he said it was good while it lasted. But as soon as there was a new administration in place, the Biden administration, there was a new Secretary of Labor, and he went about promulgating policies in exactly the opposite direction. As Eugene Scalia made very clear, this is not what his father had contemplated. You also have the son here saying that the father came largely to regret what had happened in the wake of Chevron deference. Well, yesterday at the Supreme Court, you had cases coming before the court, as I said, having to do with herring, with the fishing industry that present a clear and present opportunity for the Supreme Court to overrule the Chevron deference going back to that 1984 precedent.

And at least according to observers at the oral arguments, it was pretty clear that the conservative justices are ready to do just that. There was a very clear sense of history hanging over the oral arguments of the session yesterday, and all the justices and all the observers and participants in the process understood that what was at stake is the very reversal of this major precedent. And if the court does what now many observers expect it to do, if it moves in a more conservative direction to significantly reduce, if not to absolutely eliminate so-called Chevron deference, this is going to be a major blow to the administrative state. And I would argue that Christians and conservatives should hope for that.

We don’t deny that there are areas of expertise that are necessary for the government. We do not deny that the government should not be promulgating certain policies and principles, but we believe that this has to come through the constitutional process and it needs to move through in the main legislation that is undertaken by elected officials. But there’s another factor here that many people don’t recognize. Even presidents of the United States have found great obstruction from federal agencies that are supposedly in their own branch of government, of which they are head. The Constitution of the United States invests executive authority in the President of the United States, not in an unelected bureaucracy, much less an administrative state. So it’s going to be very interesting to see how this turns out.

And those who believe in our constitutional system of government have to understand this isn’t just about fish. It’s not just about a Supreme Court precedent. It’s about our very system of government, the checks and balances, the three branches of government, and the importance of having elected officials actually promulgate the law and take responsibility for it facing the voters. We’ll be anticipating the decision handed down by the court later this spring, but until then, it’s also important to recognize as we shift gears that sometimes legislation itself can not only change history and make a difference, it can sometimes raise many of the very same questions.

This January marked the 50th anniversary of the enactment and the effective date of what was known as the Endangered Species Act. You go back to 1974, the Endangered Species Act was a part of the environmental revolution and the movement that was then described as a movement for ecology. A part of that was the preservation of species. Now, a part of the rationale for this massive federal legislation was the fact that there were species that had disappeared and some of them had disappeared because of human action. Just basically no question about that. Others disappeared, and it’s not exactly clear why they disappeared. Now we have a much better understanding of how the biological process works now. We know that for example, there are species and subspecies that arise and then disappear, sometimes we don’t even actually know either one has happened.

The Endangered Species Act was not intended to be an overarching power grab by the federal government, but I think conservatives would say that that’s exactly what it often was used to become. You had the Endangered Species Act that was often applied by, here we go again, the administrative state, federal bureaucracies, and sometimes by state agencies and others who thought they were doing exactly what the law demanded or implied, and you have all kinds of conflicts. Now, on the 50th anniversary, you talk about a worldview divide, you have people who say, “Look, the Endangered Species Act was one of the greatest things that ever happened. The problem is it didn’t go far enough.” And then there are others that’ll be the more conservative part of our society that say, “No, look, the Endangered Species Act was a federal overreach. And quite frankly, it continues to trample on human rights, on property values and many other things and without noticeable effect.”

And that leads to another question, “How exactly do you trace cause and effect when it comes to legislation?” Sometimes it can be pretty clear. In the Endangered Species Act case, you have the question, “Well, how many endangered species did it actually preserve? What actions were undertaken by the federal government, the preserved species?” You have people on the left and defenders of the legislation who say, “Well, there are a lot of species that were preserved. Not all, but at least some.” And by the time you get to the 50th anniversary, there are lists people put together of species that had disappeared and species that were, at least it is claimed, saved. You had such species as the American alligator, and it was thought to be endangered at the time. The argument was that it was endangered.

And well, we now have, as you know if you visited Florida in many ways, you have the opposite problem. It’s not having too few alligators, but having too many. Again, federal policies come with all kinds of consequences. There are many other species for whom this has become a matter of rather radical policymaking and radical controversy. You have entire communities that have had their plans shut down because of what was claimed, at least by one side, to be the discovery of a species that should be defined as endangered, and thus this project shouldn’t be approved. All this to say is that worldview matters everywhere, and it matters when you are dealing with something like the Endangered Species Act.

I think it’s important to say that Christians have a very strong investment in recognizing the glory of God in creation, and that means the glory of God in the multiplicity of animal species. And we understand that it is a good thing to preserve and respect to those species, but we also understand that there’s a categorical distinction between those animals and human beings. And where there is an unavoidable conflict, well, you should not compromise human flourishing for at least the theory of what might serve a species. And furthermore, there are all kinds of arguments over what actually constitutes a species being endangered, and are they often listed rightly or wrongly? Again, on the left, they say there aren’t enough species listed and protected, and on the right there is the argument that there are too many.

But there’s another interesting controversy on this that is also fascinating to us. There are many animal rights activists who say that one of the problems with the legislation is that the political process, and by this they don’t just mean Congress, and frankly, they don’t just mean the bureaucratic state. They mean sometimes popular opinion. Well, it tends towards the support for the preservation of cuddly, cute creatures and not so many creatures that aren’t cuddly or cute. And by the way, you can add to cuddly and cute, interesting as in sharks and the American alligator, for example.

But an article that was published at the USA Today Network by Jim Wehmer, this point is made, quote, “Manatees, sea turtles and panthers get the big bucks. They have their own license plates, non-profits and lobbyists. Donations pour in as they tear at our heartstrings and purse strings.” But he then asked, “Does anyone lose sleep over the goblin shark or the Florida rice rat or make multi-million dollar donations to save the fuzzy pigeon-toed muscle?” He goes on to ask, “Does the Choctaw bean have a political lobby? Who knows of the Pipefish, barely clinging to life in the Sebastian River or the Titusville Balm flower that only sprouts in its namesake city?” He goes on to say, “There are snails, snakes, and other passed over creepier critters that get little to no attention or cash despite being among the most endangered and unsung among us.”

Now, that comment relates not only to the Endangered Species Act and its anniversary, but to the fundraising undertaken by a lot of non-governmental organizations, at least it is claim for the welfare of plants and animals. When it comes to animals, well, I think there’s a very legitimate point being made here. We tend to favor animals that we find interesting or cute or animals that like us. Perhaps at least part of what that tells us is that in creation, human beings who after all are assigned by God to exercise dominion and stewardship, and both of those things are simultaneously important, it is interesting that we tend to be most interested in those parts of nature that appear to be what we think is in a good way most interested in us, at least when it comes to animals. And it’s also very much an aesthetic consideration.

Something else that tells us that sometimes our own motivations aren’t as clear or as honest as we ourselves might think them to be. All this to say that there are vast worldview issues at stake in terms of the oral arguments before the Supreme Court yesterday, but there are big, big worldview implications even with something like historic legislation such as the 50-year Anniversary of the Endangered Species Act. Did it do good or did it do damage? As is the case of almost every major piece of legislation, it did a bit of both. But here’s the point. Even if liberals or more liberal Americans tended to the bill and to like its effect, and conservatives had concerns about it, though also wanting to maintain the diversity of species. The reality is that this is a matter of public debate and ultimately, that public debate should be the responsibility of elected officials when it comes to government law and policy, not in administrative state.

We need to maintain in our constitutional system of government the limitation and separation of powers. We have a judicial branch, a legislative branch, and an executive branch. We do not have an administrative state outside the reach of legislation or the responsibility of the President of the United States, and that needs to be made very, very clear. There is no unelected fourth branch of the American government, or at least there must not be.