When a federal agency ordered four small fishing companies to pay an estimated $700 in costs for on-board government inspectors (reducing their profits by 20%), the companies sued, arguing that there was no statutory language that expressly authorized federal agencies to impose this burden. The federal agencies asserted Chevron deference, a principle created by the courts (in 1984) that holds that when Congress uses vague legislative language or is silent on an issue, courts reviewing the agency’s contentious actions should give deference to the agency if its actions were “reasonable.”
Not only does this principle encourage sloppy lawmaking by Congress, it also violates the judicial duty (in the words of Chief Justice John Marshall) to “say what the law is.” So the Supreme Court ruled 6-3 that deferring to Chevron violates the Administrative Procedure Act of 1946, which provides that courts “interpret” statutes and decide “all” questions of law. In his majority opinion, Chief Justice John G. Roberts wrote that “Courts must exercise their own judgment in determining whether an agency has acted within its statutory authority.”
Here we have the progressives’ greatest enemy, the separation of powers. Somewhere Woodrow Wilson is crying. Here we have Justice Elena Kagan dissenting.
As a progressive who founded the administrative state, she naturally defended it as it is: Eliminating chevron deference and restricting agency discretion would be a “tremendous shock to our legal system,” she said, because chevron deference is “part of the warp and woof of modern government.”
Kagan called the Supreme Court’s overturning of Chevron “judicial arrogance.” But progressives also argue that progressive practice — courts exercising their judicial power to uphold the legitimacy of quasi-legislative activities of government agencies — violates separation of powers principles.
But it is not arrogant for the Court to reject Panglesian progressivism: in this best of worlds, all is for the best, and “modern government” is as it is, and should remain as it is.
In another case, progressives are concerned that courts are limiting the discretion of government agencies. An investor was accused of fraud by the Securities and Exchange Commission. The SEC has been given the power by Congress to adjudicate its own cases. So an SEC administrative law judge found the investor guilty, fined him $300,000, and banned him from the securities industry. The SEC has a biased view in the cases it has ordered to be tried.
But now the Court ruled 6-3 that Congress “cannot ‘revoke'” (the phrase used in earlier decisions) the Seventh Amendment’s guarantee of a right to trial by jury. For the majority, Roberts quoted Alexander Hamilton’s The Federalist, Chapter 78: “There is no liberty unless the judicial powers are separated from the legislative and executive powers.” Once again, progressives lament the separation of powers, and thus the Constitution. (One hysterical article in The Atlantic predicted that this outcome would be “horribly” destructive of the government’s “administrative powers.”)
Justice Neil M. Gorsuch, writing in favor of the decision and joined by Clarence Thomas, wrote that the Seventh Amendment “does not operate in a vacuum.” It works in tandem with the Fifth Amendment’s due process guarantee. The three progressive justices who dissented — Sonia Sotomayor, Kagan and Ketanji Brown Jackson — said limiting the SEC’s discretion to choose its own judges ignores “what modern, adaptive governance should look like.”
Consider progressives’ growing complaints that the Constitution is incompatible with their “modern, adaptive” government. They think the First Amendment overly protects speech that undermines individual peace and social harmony — never mind the Second Amendment (the right to bear arms). They now resent the Fifth and Seventh Amendments working together to thwart progressives’ work: limiting executive branch discretion because separation of powers has eliminated Chevron deference.
For more than a century, the enduring goal of Progressiveism has been to centralize power in Washington and the bulk of that power in the executive branch. Progressives have always prioritized the expansion of government power and scope over individual liberty. In two outstanding term-ending cases, the Supreme Court has confirmed the Constitution’s differing priorities.
So the answer to the question posed in the first paragraph is the latter.
