Chevron’s End is Near! Yawn, sigh.
What we need are public officials who are ready to govern
In this post I discuss:
Chevron deference and MQD
The current conservative SCOTUS and governing arrangements
How ESSA humbled a federal agency
The need for governing leaders
Developing future governing leaders
I must admit: I’m not all that excited about the seemingly imminent overturn of “Chevron deference.” Sure, that will be the proper decision. Yes, it will help curtail the federal administrative state.
But I have very little reason to believe that we have the conservative legislators needed to take advantage of the new governing landscape. So just as I was pleased with the articulation of the Major Questions Doctrine in West Virginia vs. EPA (2020)—a different but related way of limiting executive-branch adventuring—I’m left fuming that the right’s decades-long effort to develop judges wasn’t matched by an effort to develop better governing leaders.
The courts are finally getting our governing arrangements back in order, but too much of our governing class shows little interest in or ability to govern well. You can lead a horse to water…
This newsletter is about governing. The people, practices, beliefs, and institutions associated with using public authority to advance the common good. A legal analysis might focus on whether a court decision makes for good constitutional law. A political analysis might focus on which candidates benefit from the decision. Here, the focus is on how a decision will influence legislative- and executive-branch officials aiming to carry out their duties.
One of the key reasons those governing need good courts is that good governing in America requires the ongoing protection of our governing arrangements. For about a century, federal courts weren’t doing that job well enough. (They certainly did some things well and wrote many great decisions.) They also allowed too much power to flow to Washington (they got federalism wrong). They created and expanded rights that are not in the Constitution, statute, history, or tradition (they tied the hands of elected officials charged with governing). And they allowed the executive branch to exercise legislative power (they got separation of powers wrong).
In combination, these factors caused American governing to be too centralized and too technocratic. They hindered the kind of local variation that a diverse, continental nation needs. They privileged progressive, elite sensibilities over other ways of life. They robbed us of the big legislative debates that release political pressure, build consensus, and encourage compromise.
From a governing point of view, the best thing about today’s conservative-leaning U.S. Supreme Court is that it is getting institutional arrangements back in order. It is protecting essential rights, enabling states and localities to govern, preserving pluralism, and maintaining the separation of powers (e.g., AFP v. Bonta, American Legion, Biden v. Nebraska, Espinoza, Carson v. Makin, Dobbs, Fulton, Moore v. Harper, Janus, Trinity Lutheran, Rucho, West Virginia v. EPA.)
Importantly, from this governing point of view, what is to be celebrated is NOT the policy outcome of each decision. That would be using the judiciary to get your policy preferences. That’s inappropriate. To prioritize America’s approach to governing is to want the courts to get the process right so good governing can take place.
To reiterate, the Major Questions Doctrine is, and the overturn of Chevron would be, good for governing. But two things need to be said about that. First, those of us who want a modest administrative state need to recognize that Congress has always had in its power the ability to constrain executive-branch agencies. These entities only have the authority that Congress gives them. They only have room to roam when statutory language is vague. They can only apply old, vague language to new issues or in service of novel theories if Congress has failed to regularly update legislation. They can only get away with straying from Congress’s purpose if Congress fails to legislate them back into compliance.
Let me give a clear, recent historical example. After the 2008 financial crisis, Congress appropriated more than $100 billion to shore up schools. Then Secretary of Education Arne Duncan used vague statutory language to create a massive competitive grant program widely known as “Race to the Top.” This initiative made lots of people angry for lots of reasons. This is a classic example of an executive-branch department creating policy from imprecise congressional direction. In other words, Duncan and his team could have never done this had Congress written more specific language; and that program would have not gone on for years had Congress passed legislation unwinding it.
But Congress learned its lessons. As Duncan’s tenure continued, he and his team decided to give states sweeping freedom from the No Child Left Behind Act if those states embraced a set of policy priorities favored by the Obama administration. Their power to do this was dubious at best, but they pressed ahead, presumably reasoning that they’d pushed the envelope with Race to the Top and got away with it. But Congress had had enough of that.
Led by Republican Senator Lamar Alexander, Congress passed what became known as the Every Student Succeeds Act. It replaced the No Child Left Behind Act, but more importantly, it took away the power of the secretary of education to issue rules in countless areas and forbade the secretary from issuing guidance letters, waivers, and so on. To this day, I’m not aware of a clearer example of Congress humbling an agency for its hubris.
This is how I summarized the press coverage back in 2016:
Congress took emphatic steps to debilitate the office of the secretary of education, or as NBC News put it, “ensure there are no more Arne Duncans.” Former Bush administration official Sandy Kress wrote, “Arne, they leveled your program and office.” As House education committee chair John Kline put it, “We spent about fifty pages in this bill putting very strict prohibitions on what the secretary can and cannot do.” It even has numerous “rules of construction,” provisions barring the secretary from interpreting language in ways that would empower the department. In Education Week’s words, this “crackdown is largely aimed at Obama’s education chief, Arne Duncan.”
So my first point is: Congress has the power to constrain the administrative state
My second point is that Congress was only able to do this because it was tired of looking weak, because it was willing to spend enormous time and energy crafting new legislation, and because it had strong, savvy, knowledgeable legislators like Sen. Alexander at the helm.
To put a fine point on this, MQD and Chevron’s overturn would return to Congress a bunch of authority appropriated by ambitious agencies. But that doesn’t mean that Congress will use that authority. Will Congress suddenly become highly effective now that agencies have been tamed? Will Congress suddenly develop and elevate to positions of leadership workhorses who can get things done? Will Congress suddenly punish its members who hinder the body’s work?
I doubt it.
On the contrary, a staggering number of members are retiring from Congress because the institution feels broken. Included on that list are several of the too-few highly effective members. We may be left in a situation—and it may happen in multiple policy areas—where the courts have forbidden agencies from jumping in and Congress is too anemic, too inept, or too dysfunctional to legislate. This would be Governing Wrong at its worst.
One final aspect of this situation is worth underscoring. Forty years ago, many conservatives were utterly despondent about the state of the judiciary. Judges were progressive and activist. Republican presidents were selecting for the courts judges whose jurisprudence would end up indistinguishable from Democratic nominees.
Along came the Federalist Society and a multi-generation effort to educate, develop, place, and support right-of-center lawyers. There would not be a conservative majority on the Court were it not for that effort. And more specifically, we would not have the Major Questions Doctrine or the possible end of Chevron deference had it not been for that effort.
And so now we have a judiciary that has enabled good governing to take place…and we don’t have enough great people ready to govern.
This is why I started and run a program called the American Conservatism and Governing Fellowship.