WRFH/Radio Free Hillsdale 101.7 FM - The Hillsdale Interview: Jill Jacobson

Episode Date: July 8, 2024

Jill Jacobson is a Boston-based fellow at the Independent Women's Law Center and a Contributor at Young Voices. She holds a J.D. from Boston College Law School and a Masters from Northeastern University. Jill regularly writes on Administrative Law, Individual Liberty and Property Rights, and Free Speech in the Boston Globe, the Wall Street Journal, Law and Liberty, the National Review, and elsewhere. She also appears on Fox News, Fox Business, and various radio programs. She will be a federal law clerk for the 2024-2025 term.She joins WRFH to discuss a recent Boston Globe article about the U.S. Supreme Court striking down Chevron deference.

This is Michaela Esstruth on Radio Free Hillsdale 101.7 FM. With me today is Jill Jacobson. She is a visiting fellow at the Independent Women's Forum Law Center and a contributor at Young Voices. She holds a JD from Boston College Law School and Regular Rights on Administrative Law, Individual Liberty, and Property Rights, and free speech in the Boston Globe, the Wall Street Journal, Law and Liberty, and the National Review, and elsewhere. She recently wrote an article published in the Boston Globe, and it's titled, With a Boston Globe, the Supreme Court overturning the Chevron doctrine, lawmakers must legislate not delegate. Jill, thanks for being here. Thanks for having me. Absolutely. Okay, so jumping into this article that you wrote, I was wondering before we talk about the article, if you could give background on the Chevron decision. It seems like a lot of people are talking about it, but almost talking past each other because there's a lot of confusion around it. Yeah, definitely. So to begin, the story really begins in the early 80s when the Supreme Court decided a case called Chevron. And what that case held, it established what is now sort of infamously known as the Chevron

doctrine, which tells courts when they're interpreting statutes that agencies have acted on, right? So there are administrative agencies and the federal government like the EPA, the FDA, things like that. That's sort of the nuts and bolts of our government in the 21st century. And we can talk about whether that's a good thing or a bad thing. But when administrative agencies do anything, they do it pursuant to what's called their enabling statute. This is the statute that Congress creates them with and sort of tasks them with their duties to do. And whatever they do, it has to be sort of under this enabling statute. So Chevron came along and told courts that when agencies do something and they

claim that it's under their enabling statute, that we have to defer to an agency's reasonable interpretation of their statute. So in other words, instead of the court coming to its own independent decision about the law, about whether what the agency does falls in line with the law that Congress created them under, it's actually the agency that gets to decide whether it's reasonable. So that was the core holding of the Chevron case in the 80s. And, you know, at the time, it didn't really make a big splash. It wasn't noticeable. But what happened over the next, you know, 20, 30 years was a massive growth in federal agency power, sort of the creation of what we call now the administrative state. Because now, in hindsight,

we can tell that by deferring to an agency on the contours of their own power, they were able to amass more and more and more regulatory power in many instances beyond what Congress had even intended for them. So that's the background sort of leading up to the loper bright decision, if that makes sense. Right. That does make sense. So how did this case even come to the court for the court to overturn that decision? Yeah. So this case is really interesting. It's two cases combined. And the plaintiffs are local fishermen, actually here in Massachusetts, where I live. Yeah. And there is. a rule that a federal agency passed that requires monitors to be on shipping boats to make sure that fishermen aren't overfishing and they're compliant with fishing regulations. But the agency

went to Congress and said, you know, we'd like to put these monitors on fishing boats so they can oversee them in real time. And Congress didn't want that. Congress didn't appropriate funds for it. It didn't, it wasn't willing to give an agency the money to put a monitor on all of these. fishing boats. And so what the agency did was passed a regulation saying that these fishermen had to pay for the monitors themselves. So that would be like you deciding to throw a party and the government telling you, well, you had to pay for a policeman to come to the party too to watch everyone. Right? That's crazy. We don't pay for our own law enforcement. So these poor fishermen were paying up to 20% of their profits, essentially to have a government watchdog

on their boats, even though Congress was unwilling to pay for it. So they brought a suit and they said, you know, this is wrong for a number of reasons. But more importantly, the agency shouldn't be able to define the contours of its own power. Chevron should really be overturned because this is an unreasonable interpretation. And under Chevron, the court would have had to defer to the agency and allow this to go forward. So those are the facts that sort of gave rise to the case in the first place. And why do you think a lot of people are protesting or panicking at that decision? So I think a lot of the blowback we're seeing is sort of this is the end to the administrative state. Agencies aren't going to be able to regulate anything.

Environmental efforts are going to be destroyed. Sort of big business is going to reign supreme. That's a lot of the critique we're seeing. And I think that is sort of at the root of it is a fundamental. misunderstanding of what Chevron undid, right? Because under the Chevron regime, courts were no longer deciding what the law was. Agencies were. So not only could they decide what to do, but they could decide in large part whether it was legal or not, when traditionally that's the role of the federal courts. If you and I did something and we were hauled into court, we wouldn't decide

if what we did was right or wrong, legal or illegal, the courts would. So, overturning Chevron sort of restored the normal constitutional order. So in other words, if what federal agencies are doing is in line with the law as written, they shouldn't have a problem. So when people freak out and say, well, this is the end to the administrative state, agencies won't be able to regulate, that really begs the question, well, what are modern day federal agencies doing that is so out of line with the law that critics assume that courts won't allow them to do it anymore, right? That seems to be more commentary on federal agencies than it does on the courts. Right. This is Michaela Estruth, and with me is Jill Jacobson. She's a visiting fellow at the Independent Women's Forum Law Center

and a contributor at Young Voices. She recently wrote an article that we're talking about. It was published in the Boston Globe, and it discusses the Supreme Court recent Chevron decision. And she's with us today to talk about it. So, Jill, I was wondering if we could actually get into those agencies you mentioned earlier that it's kind of like the backbone of our government and modern government. And I was wondering if we could talk a little bit about that of our agencies. Well, like, are they part of the Constitution? Are they part of their original design? Or has that been a significant shift? Yeah, definitely. So federal administrative agencies have always been around since our founding in some form.

But they were far, far less important. And they certainly didn't do most of our day-to-day governance like they do now. But now we live in an era that I like to call sort of the era of executive government where most of our government is actually not done by Congress at all. It's done by federal administrative agencies that in large part are at the whim of the president. So there are lots of theories as to why that is. But I think the one that holds the most water is just that Congress is either incapable or unwilling to do the tasks that are needed for a federal bureaucracy that is this big and complex.

Congress is really dysfunctional right now, as you can tell. And, you know, when there's a power vacuum, someone is going to rush into fill it. And the natural body to do that are federal administrative agencies. And, you know, under Chevron, then when they could control the contours of their own power, they grew and grew and grew. And now we are in an era where most of our regulation is done by bureaucrats that are largely inaccessible to the people. Wow. Okay. So does this decision give power back to Congress? Does it give power back to the legislative branch as well? So I would necessarily say that it gives power back. In fact, a lot of critics

argue it gives way more power to the courts because it took it away from agencies and sort of reappropriated it to the courts. But that's the natural order of things. That is our constitution as originally designed. So the question is now that power vacuum is once again sort of there for the taking. The question is, will Congress step up to the plate and assume its proper role, which is to be the primary legislature to write clear. specific and often laws instead of delegating to executive bodies so that they don't have to. Right. And in the subhead of your article, you wrote that the court's decision is neither conservative nor liberal. It's a judicial decision to honor the Constitution. Can you explain how, I mean,

in the same age, like having something that's quote unquote neutral seems almost impossible. So how is it neither conservative nor liberal? And what kind of constitutional interpretation does this case take? Yeah, definitely. I think sort of one of the funny and ironic parts of Chevron is that when it was originally decided, it was appreciated and sort of pushed forward by conservatives. So the woman who was at the head of the EPA at the time that Chevron was originally decided was Justice Borsuch's mother.

And under Reagan, they were trying to do a lot of environmental deregulation. So when Chevron came down and they could side with this deregulatory EPA, conservatives loved it. And liberals were so dismayed and thought that it would be the end of regulation. And now it's sort of flipped that Chevron has fallen out of favor with conservatives. And liberals would have rather kept it because we've amassed such a large federal government. So Chevron has flipped hands back and forth as to which sort of political ideology likes it. largely dependent on who's in the executive, right? But at the end of the day, Chevron is out of step with the Constitution.

Article 3 of our Constitution best judges, best courts with the power to say what the law is. Not the executive, not Congress, but the courts. So by overturning Chevron, we're really restoring our proper constitutional order, which does not have an ideological bent. Right. This is Michaela Estruth. with me is Jill Jacobson, visiting fellow at the Independent Women's Forum Law Center and contributor at Young Voices. She recently wrote an article published in the Boston Globe, discussing the Supreme

Court's decision on Chevron, and she's talking about it with us today. So will this decision kind of form a precedent for future Supreme Court cases, do you think? Yeah, so there are two interesting points to that. One is that Chevron might be the most widely cited case in Supreme Court history. I mean, it is cited thousands of times. So if Loper Bray, the case that just turned overturned Chevron, is a similar indication. I'm assuming, yes, it will be relied on frequently, perhaps more than Chevron itself. So that's the first point. But the second point is that Chevron wasn't really a tool for the Supreme Court. In fact, the Supreme Court hadn't relied on Chevron, hadn't cited it in an opinion. in I think almost at least five years, if not 10.

So a very long time. Chevron was a tool for the lower courts. So courts that decide these questions before it's appealed to the Supreme Court. And it was really helpful for lower courts because they have a lot of cases. And deciding cases under Chevron was very easy. You just looked at the interpretation. If it was reasonable, you sided with the agency and called it a day. But now under the Loper Bright regime, courts really have to read law.

They have to do the duty that courts are supposed to do, which is far more complex. So it'll be interesting to see how lower courts grapple with the overturning of Chevron. Okay. And then returning to the ideological lines that we were talking about earlier, what was the actual, how did the justices decide? What was the split on the court? And then in your article, sorry, this is a two-front question. In your article, you actually quoted from the dissent, I believe. So could you go into that as well?

Yeah, definitely. So this was a six-three decision on ideological lines. But I think the dissent really illustrates one of the core problems with the sort of thinking that the dissenters rely on because Justice Kagan writes in dissent that courts deferred to an agency, you know, under Chevron, under the assumption that. Congress desires the agency rather than the courts to have the discretion, right? Congress drafts these vague statutes intentionally so that administrative agencies have flexibility to do certain things and the courts won't strike it down. But I think that presumption is really out of step with reality now. And the majority agrees because federal administrative agencies have taken such an outsized

role in our government. and Congress really is not nearly as functional as it used to be. So when agencies routinely exceed the bounds of congressional intent, it's hard to accept the argument that Congress writes intentionally vague statutes such that they can do that because it just happens in such unconstitutional ways and ways that really infringe on our liberty in ways that I don't think Congress would have intended, had it known, what would happen when drafting the law originally. Right.

And I mean, I've only seen responses kind of in the media, but are we also getting responses from agencies themselves who were outraged at this decision? I think, you know, agencies and people in the law and in government more generally were not nearly as surprised as the general public by this decision. Because the Supreme Court hasn't relied on Chevron in years, you know, most conservative jurists

are pretty outspoken that they now think that Chevron was wrongly decided and should be overturned. So I think a lot of people realized that this was coming, the question was when. So I think most federal agencies and hopefully Congress were prepared for this reality and are sort of adjusting accordingly. Yeah. Well, Jill, I don't have any other questions for you. Do you have anything else that my questions haven't addressed? I don't think so.

The one thing I would say is, you know, there's a public tendency to think that the sky is falling when the Supreme Court is a monumental decision. And I have hope that no such thing will happen. I think, you know, in the best case scenario, Congress will get back to work. And this will really revitalize them and encourage Congress to legislate more and delegate less. And that's all that we can hope for. That was Jill Jacobson, visiting fellow at the Independent Women's Forum Law Center and contributor at Young Voices. She recently wrote an article published in the Boston Globe titled With Supreme Court overturning the Chevron doctrine, lawmakers must legislate not delegate. Thanks for listening. This is Michaela Estruth, and you're listening to Radio Free Hillsdale 101.7 FM.