By now many readers have heard about the Supreme Court decision in Loper Bright Enterprises v. Raimondo which did away with the so-called Chevron Deference. This deference was granted to agencies by the federal courts with the assumption the agencies were populated by experts whose technical knowledge of complicated policies could be relied upon. This deference meant in cases where there was an ambiguous law or regulation the courts would defer to the judgment and interpretation of the experts in the agencies. Effectively, Executive branch agencies had more power than Congress when their decisions were challenged by the regulated class of users many times in the application of the regulation which would defy common sense and the need for practical use. Thus, the Founder’s desire for three equal branches of government had been thwarted for the fifty years this Court ruling in the Chevron case has been in effect.
The decision doing away with Chevron Deference is a giant step forward in controlling the ever-aggressive nature of the regulatory state of affairs in our government; yes, that government “of the people, by the people and for the people”. However, while this is a good start, the agencies will continue to add more regulations and figure out new areas to regulate because, in my experience, bureaucracies are not always content with the status quo. Thus, before we, in the regulated classes, become complacent in relying on this latest decision we should analyze the state of our administrative arena a little more carefully.
Here are some examples to illustrate my point. I am reading a book by Supreme Court Justice Neil Gorsuch entitled “Over Ruled”- “The Human Toll of too Much Law”. Justice Gorsuch and his co- author Janie Nitze argue the premise that increasingly we citizens are restricted by too many laws in what we can say, what we can do, and how we may live. This situation is made worse because such restrictions in the face of common sense and practicality also have the effect of undermining our respect for our government and our institutions such as the courts.
The U.S. Code was contained in 54 volumes and about 60,000 pages in 2018. A hundred years earlier the whole code was in one volume. The Code is the Statutes passed by Congress. The Federal Register was begun in the midst of the Great Depression in 1936, and it was 16 pages. This was to be the first place one could find proposals and final rules issued by the federal agencies. By 2021 the Code of Federal Regulations could be found in 200 volumes comprising over 188,000 pages. So our laws are contained in over 60,000 pages and the regulations implementing those laws can be found in 188,000 pages. Remember the U.S. Constitution in Article I says “All legislative Powers herein granted shall be vested in a Congress…” But people in agencies are exercising that power with no particular oversight every working day. Another thing many forget is the Guidance issued by agencies purported to explain a statute or regulation outside of the regular legislative process, but which ends up having the force of law. Thousands of lawyers across the country are employed to help their clients navigate this catalogue of laws and regulations impacting their businesses, but what is the average person to do even once finding the relevant regulation to interpret its meaning?
To put a finer point on what I am talking about above Justice Gorsuch relates in his book this startling fact. In 2015, Congress adopted approximately one hundred laws and the government’s agencies issued 3,242 final rules and proposed 2,285 rules. I do not think anyone could argue credibly that we are not a very regulated society. I will agree there are regulations needed to provide for a safe and orderly America. However, some things do not need to be regulated or could achieve the same purpose with less stringent regulation.
The first example to support my assertion is from the Loper Bright case discussed above. A fisherman in New England became upset when the federal agency regulating the number and kind of fish allowed to commercial fishermen changed the requirement to inspect a catch from a dockside event which cost a few hundred dollars to a commercial vessel required to carry an inspector on board at a cost of ten times the dockside inspection. The increased cost to the fisherman resulted in his business becoming unprofitable. He sued and the result was the Supreme Court determination that the agency had exceeded its statutory authority to the extent it could not rely on a Chevron Deference defense for its decision. The Federal Agency had to go back to its old way of inspecting fishing catches at a more reasonable cost to the fishing industry.
There is one more example from Justice Gorsuch’s book that makes the point we are over-regulated in this country in many impracticable ways. I was unaware the increasing phenomena of braiding hair is a cultural and identity validating custom among certain people in our society. It has been practiced for thousands of years and traces its origins to Africa. It is considered an art form and not just a fashion statement. Some practitioners have been braiding hair for many decades and have a deserved reputation for their artful craft.
One such practitioner is a Texas woman who’s been braiding hair for a living since she was in college. She had several business locations and was so well-known that she taught braiding to others. Notably she did not operate beauty salons where hair was washed, cut and styled. Nor did she use any chemicals or sharp instruments. Her tools of trade were her bare hands.
This practitioner had been in business for over a decade when one day armed police officers raided her establishment and arrested her for braiding hair without a license. To obtain a license one would have meant taking a course in cosmetology at a cost of many thousands of dollars and three hundred hours of training. One problem became very apparent; there was no cosmetology course in Texas that could train someone in this thousands of years old African art form. The rules had been recently changed with no notice for people like this young lady and no accommodation for training teachers in the craft. Ironically, our arrested rule breaker could have taught the course to herself and others. She fought the criminal charges and was eventually exonerated. It took a fight of almost twenty years before the young lady could be allowed to braid and teach braiding but eventually the rules were amended to allow the practice of braiding if one obtained a certificate for thirty-five dollars.
Are you as amazed in reading this as I was writing this to think of many examples of rules related to the livestock industry that have as much impractical application and non-nonsensical relevance as hair braiding rules in Texas did to our young persistent braider. I would like her on my side in a fight against the bureaucracy.
I’ll see you soon.