Hope at the End of the Tunnel:

The Obliteration of the Chevron Rule

Last week, the Supreme Court of the United States issued one of the most important decisions germane to the fight of targeted individual’s freedom. In Loper Bright Enterprises et al. v. Raimondo, the Court reversed four decades of the “Chevron Rule” – a carte blanche that for 40 years agencies abused with absolute impunity, violating the separation of powers.

WHAT SEPARATION OF POWERS, YOU ASK?

In simple terms, the United States Constitution provides that only Congress can make laws, the judiciary interpret them and the executive branch run the government. None of the three branches is to overstep in the authority of the other.

Through the Administrative Procedure Act (APA), Congress gave executive branch agencies limited permission to enact regulations and adjudicate controversies under the statutes that each agency is responsible for enforcing. The APA contained safeguards to ensure that these quasi-legislative and quasi-judicial actions adhered to due process requirements.

WHAT WAS THE CHEVRON RULE?

In the context of a Clean Air Act case, there was ambiguity in the statute regarding the definition of stationary source. Upon creating the Chevron rule, six judges of the Court gave agencies such as EPA the leeway to create regulations beyond the statutory authority holding that any ambiguity in the statute had to be interpreted as Congress’ grant of deference to the agency. Under the Chevron Rule, courts upheld agencies’ regulations that went beyond the scope of Congressional authority, but also granted them deference in the interpretation of the statutes they had the responsibility of implementing.

Chevron gave agencies a deference that allowed them to act as legislators, accusers and judges.

WHAT DID THE COURT SAY IN LOPER BRIGHT ENTERPRISES ET AL. V. RAIMONDO ?

The decision, written by Judge Roberts, is such a jewel, that instead of paraphrasing it, I chose to reproduce below some of its brilliant quotes (citations omitted):

The Framers also envisioned that the final ‘interpretation of the laws’ would be “the proper and peculiar province of the courts.”

Four decades after its inception, Chevron has thus become an impediment, rather than an aid, to accomplishing the basic judicial task of “say[ing] what the law is.”

Under Chevron, a statutory ambiguity, no matter why it is there, becomes a license authorizing an agency to change positions as much as it likes, with “[u]nexplained inconsistency” being “at most . . . a reason for holding an interpretation to be . . . arbitrary and capricious.”

“By forcing courts to instead pretend that ambiguities are necessarily delegations, Chevron does not prevent judges from making policy. It prevents them from judging.”

”…[D]eference is ... not warranted “where the regulation is ‘procedurally defective’—that is, where the agency errs by failing to follow the correct procedures in issuing the regulation.”

“The experience of the last 40 years has thus done little to rehabilitate Chevron. It has only made clear that Chevron’s fictional presumption of congressional intent was always unmoored from the APA’s demand that courts exercise independent judgment in construing statutes administered by agencies. At best, our intricate Chevron doctrine has been nothing more than a distraction from the question that matters: Does the statute authorize the challenged agency action? And at worst, it has required courts to violate the APA by yielding to an agency the express responsibility, vested in “the reviewing court,” to “decide all relevant questions of law” and “interpret . . . statutory provisions.” §706

WHAT DOES THE END OF CHEVRON MEAN FOR TARGETED INDIVIDUALS?

Although the unadulterated Chevron rule did “not apply if the question at issue is one of ‘deep ‘economic and political significance.,’” for 20 years the FBI’s abuse of the TSDB has enjoyed inordinate amount of undeserved deference.

First, because the Terrorist Screening Database was created by means of executive order Homeland Security Presidential Directive 6, not an act of Congress. The Supreme Court has held that for agency action to legally interfere with important aspects of a person’s life, its authority must specifically derive from a statute. The “Major Questions Rule” doctrine requires that Congress specifically authorize or delegate the activity that significantly affects a person’s life.

This is precisely the controversy in Kovac v. Wray, an appeal pending before the Fifth Circuit Court of Appeals challenging the constitutionality of the Watchlist that severely impacts anyone placed on it despite lacking Congressional authority.

Second, in the context of the FBI’s permanent placement of targeted individuals in handling codes 3-4 without notice or due process, the Supreme Court’s obliteration of the Chevron Rule is a game changer. For one, the FBI was never given the legal authority to include on the TSDB anyone but “known and suspected terrorists”. Today, the FBI has no wiggle room to defend that it can continue placing on two secret categories of a terrorist list “non-investigative subjects” that “do not meet reasonable criteria” and ”do not represent a threat to national security”, using “secret criteria” despite the clear wording of HSPD-6 that it would guarantee the protection of citizens’ constitutional and civil rights.

The TSDB is not an act of Congress. The FBI uses it as its own McCarthy blacklist to condemn to a life of torture anyone that dares speaks against the regime, obliterating their most basic human and civil rights.

It does not get more ultra vires or illegal than this. With the Chevron protection gone, the FBI does not have much going in the direction of continuing to perpetuate their illegal conduct.

The Supreme Court reiterated that Courts have an nondelegable obligation of “say[ing] what the law is.” This duty entails answering the call to stop agency action in excess of its delegated legal authority, ordering the liberation of innocent civilians placed on a terrorist database in excess of agency authority, sentencing them to a life of torture.

The light has become brighter and closer. The tunnel will soon end.