Lee Responds To Chevron Decision During RNC: We Should Not ‘Just Defer To The Government’

3 months ago

At an event by the "Heritage Foundation" during the Republican National Convention, in Milwaukee, Wisconsin, Sen. Mike Lee (R-UT) answered moderator questions on the recent Supreme Court decision regarding Chevron.

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Transcript

00:00to dismantle it.

00:02It seems when people are very frustrated by the government that it is, in fact, this administrative

00:14state that is the focus of their ire, even if they don't understand that.

00:18And Congress willingly handing over this authority, and Congress is the Article I branch, it is

00:25supposed to be supreme, willingly handing over its authority to these unaccountable

00:30regulatory regimes is really something that has caused a lot of problems for Americans.

00:36It was supercharged, this ability of this unconstitutional fourth branch of government

00:41to destroy Americans' lives was supercharged in part through Supreme Court jurisprudence.

00:47And what is, you know, when people talk about the administrative state and this authority

00:51that they have that they shouldn't have, they frequently talk about Chevron deference.

00:56What is that?

00:57Chevron deference is a term drawn from a 1984 Supreme Court ruling called Chevron versus

01:03Natural Resources Defense Council.

01:05In a nutshell, what it said is, we, the courts, will defer to a federal agency's interpretation

01:14of the laws it's charged with administering.

01:17We will defer to those, we will allow those to stand, even if it's not the best interpretation

01:21of the law.

01:23If it's, as long as it's not unreasonable, we will defer to it.

01:27And then they developed a set of loose standards to determine what a reasonable interpretation

01:34was.

01:35But even in that, it was a very deferentially applied.

01:38So basically, it's heads we win, tails you lose.

01:43The executive branch agency always won.

01:46They always won in how they interpreted the statute.

01:49So Federal Trade Commission, for example, or, you know, EPA.

01:55If there was doubt as to what clean air meant, as used in the Clean Air Act, it would always

02:01go to the government.

02:03And so what happened this year to the Chevron deference?

02:06In the Loeb or Bright ruling, it came out about 10 days ago, the Supreme Court said

02:11no more.

02:12They said, this is ridiculous, we don't.

02:15Courts have tools that they use to interpret law.

02:21We call those canons of statutory construction, different formulas.

02:25Our laws consist of words, our words have meaning, and we have rules that judges are

02:30trained in using to figure out what they mean, where there are ambiguities in the law.

02:35And they said, there's just not a good reason for us to just defer to the government on

02:41its own interpretation when we are the interpreters.

02:44That is our job to do, and that's what we're going to do.

02:47So does this mean the battle against the administrative state is over, and that people who care about

02:53constitutional governance won, and we can all go home now?

02:57I'm so glad you asked that question, Molly, because the answer is emphatically no.

03:03There is a grave temptation on the part of all of us.

03:06You remember that great scene in The Lion King, where they're saying, you know, no king,

03:10no king, da-da-da-da-da-da.

03:13There is a grave temptation we can fall into to say, oh, Chevron's gone.

03:18That means we're all free.

03:21But that's not at all the case.

03:23Chevron is not the end, it's not even the beginning of the end, it is only the end of

03:26the beginning, and it's the end of the beginning only if we make sure that it is.

03:32In other words, we have to take the next step.

03:35All this does is it says that the administrative state, when it makes laws, laws that can throw

03:41you in prison, laws that can get you fined, that can shut down your business, they actually

03:45define crimes all the time.

03:49If all we do is say the courts are now going to interpret whether they are correctly interpreting

03:54federal law, we haven't really gained that much.

03:59The underlying injury to the constitutional structure is the delegation in the first instance

04:06to the executive branch agency of the lawmaking power.

04:10The lawmaking power, so that the political philosophers and the legal philosophers that

04:16inspired the founding generation, including, for example, Montesquieu, they were very,

04:23very firm on this principle, which is that the lawmaking power is not something that

04:31can be delegated.

04:33The lawmaker's job, once the lawmaker has chosen to make laws, the lawmaker's job is

04:38to make law, not other lawmakers.

04:42So that's what we have to tackle next.

04:45We have to get Congress to make law and to stop delegating.

04:49Now it's a complicated problem because, again, we're producing 100,000 pages of new law every

04:56single year.

04:57By the way, quick anecdote, and then I'll get back to the main question.

05:02A few years ago, we tried to figure out how many crimes are on the books, how many federal

05:07crimes you can commit.

05:08We asked the Congressional Research Service, whose job it is, to tell us that.

05:12It took them a while.

05:13They got back to us and they said, okay, the answer is unknown and unknowable, but it's

05:20at least 300,000.

05:21The reason it was that many, but unknown and unknowable, was because of these administratively

05:27created crimes.

05:28That's spooky.

05:30Anyway, so very complicated problem.

05:32There is an elegant, almost perfect solution that would deal with most of the problem,

05:40and it's one legislative proposal called the REINS Act.

05:43It's R-E-I-N-S, regulations from the executive in need of scrutiny.

05:49In one fell swoop, it would reinvigorate Article I, Section 1, and Article I, Section 7, which

05:54are the ones that tell us how you make a federal law, but only Congress can make federal law.

06:00It says that these executive branch agency rules, the major rules imposing legal obligations

06:05on the part of the public that are significant in the way they regulate, could take effect

06:13only after they've been enacted by Congress.

06:16If a genie appeared to me and said, you can pass any bill that's been introduced in Congress

06:21in the last 15 years, it would be the REINS Act, 100 times out of 100.

06:27That would do more to reinvigorate American freedom and our constitutional form of government

06:32than anything else I can think of.

06:34And I think it needs to be item number one for the Trump administration to tackle legislatively

06:40next year.

Lee Responds To Chevron Decision During RNC: We Should Not ‘Just Defer To The Government’

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