Court got it right on Chevron

Ever heard of Bryan Berg? Me neither.

Iowa State graduate and faculty member, Brian Berg, collects world records for number of playing cards in a house of cards. In 2010 he spent 44 days constructing a replica of the Venetian Macao with 218,000 cards.

Now imagine you created that playing card replica and pranksters think it cool to smash it and watch all 218,000 cards flutter down.

Why do I ask you to imagine?

Because that’s the best analogy I can think of for the Supreme Court’s stretching its long arm of the law into matters the Constitution considers political. Stirring this poisonous stew, bubbling on the back burner behind the curtain, that will forever change our lives.

The Constitution leads with, “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Art. I, Sec. 1.

For the last 40 years the Court has followed its unanimous holding in the Chevron case, giving deference to “reasonable” agency interpretations of laws. (“Policy arguments … should be addressed to legislators or administrators, not to judges. The EPA's interpretation of the statute … represents a reasonable accommodation … and is entitled to deference.”)

Congress publishes its laws in the 60,000-page U.S. Code. Few Representatives and Senators have the time to read all of them, let alone enforce their daily administration. What do they do? They create agencies with the power to administer the laws, to write and enforce nearly 200,000 detailed regulations in 242 volumes — under Congress’ watchful eye.

This column is not a legal opinion. But it does draw on experience: Supreme Court law clerk, associate at corporate law firm, head of executive branch agency (MARAD), commissioner of regulatory commission (FCC), presidential adviser, reformer. To borrow from Joni Mitchell, “I’ve looked at Chevron from all sides now.”

My conclusion? Chevron got it right.

In 2022 4% of the House and Senate candidates received a billion dollars in political contributions. Four billion was spent on 12,000 lobbyists. Big corporations need not violate the law because they help write the law — and help select the heads of agencies. Employees move from companies to agencies and back again. Business neither deserves nor needs the court’s help.

There are already plenty of checks on agencies’ abuses of their power. Congress writes the laws and shapes the agencies’ powers. It hears the complaints of big business — and too often yields. Congress can always change any law or agency regulation. Each agency gets annual congressional oversight by budget and oversight subcommittees.

Big corporations already have too much control over what the Constitution and prior Supreme Courts have ruled is the sole responsibility of Congress. That business keeps knocking on the Supreme Court’s door to grub for more would be as hilarious as a Kathleen Madigan stand-up routine if it were not so outrageous, dangerous, unconstitutional — and costly.

Nicholas Johnson believes, with Winston Churchill, that a constitutional democracy is the least-worst form of government. mailbox@nicholasjohnson.org