Here is something you might not realize if you never venture outside the Denver-Boulder metroplex or if you are part of the stateโs benighted โprogressiveโ ruling class: Colorado is not Massachusetts or New York.
Most of the state is economically and culturally part of the American West. Traditionally, thatโs the Real Colorado.
People in the Real Colorado, like people in Montana, Idaho, Utah, and other Western states, largely live off the land. Farming, ranching, mining, hydrocarbons, and tourism are central to the economy. Those who live in the Real Colorado, like those in other Western states, share the individualism and traditional values the โprogressiveโ crowd would delight to destroy.
Folks in the Real Colorado donโt get many breaks these days, but the US Supreme Court just gave them one.
It was the decision inย Loper Bright Enterprises v. Raimondo, which pulled the plug on the infamous โChevron Doctrine.โ
The Chevron Doctrine
The Chevron Doctrine was one of the fig leaves that 20thย century liberal activist Supreme Court majorities used to pretend the federal administrative state is somehow constitutional. Hereโs the background:
The Constitution grants Congress power โto regulate Commerce โฆ among the several States.โ By โCommerceโ theย Constitution meansย mercantile trade and a few associated activities. Other economic activities, particularly those involving land within state boundaries, are not โCommerceโ as the Constitution uses that word. Regulating such matters was reserved almost exclusively to the statesโthat is, to governments closer to the people than the distant Washington, D.C. establishment.
During the years 1787 to 1790, Americans debated whether the Constitution should be ratified. The documentโs advocatesย emphasized repeatedlyย that the proposed Constitution limited the economic power of the federal government. Only the states could regulate in-state land transactions, agriculture, mining, and other forms of land use. These representations were confirmed by the Ninth and Tenth Amendments.
Beginning around 1940, however, liberal Supreme Court majoritiesย stopped enforcingย those limitations on federal power. The court pretended that โCommerce . . . among the several Statesโ meant โthe entire economy.โ
The result was a bonanza for federal politicians. They reveled in their new-found power and passed laws on almost every conceivable subject. Eventually, even yourย personal toiletย became subject to federal regulation.
But the politicians who so enjoyed inflicting laws on the rest of us couldnโt be bothered monitoring those laws. So they passed statutes creating administrative agencies and granting those agencies vast powers.
Yet even those vast powers were limited. When agencies attacked Western land owners and land users, the victimized citizens sometimes went to court to argue that the agency was exceeding its statutory authority.
Well, we canโt have that! So in 1984, yet another liberal Supreme Court majority issued what became known as the โChevron Doctrine.โ It said that in most cases, an agency is the judge of its own authority. If there was any basis for the agencyโs conclusionโeven if the conclusion was wrongโthe judicial branch would abdicate and let the agency rule in its own favor.
Agency abuse
What followed was, in the words of the Declaration of Independence, a โlong train of abuses.โ Federal agencies invaded the jurisdiction of the states to assault Western property owners.
A good example was on the Supreme Court docket last year:ย Sackett v. Environmental Protection Agencyย (EPA). In that case, an Idaho couple (the Sacketts) had decided to backfill their land, but the EPA ordered them to reverse the process.
As a constitutional matter, this land use issue should have been one for Idaho state officialsโnot for the federal government. But the EPA claimed jurisdiction as part of its authority over โnavigable waters.โ
There was no waterโnavigable or otherwiseโon the Sackettsโ land. But that didnโt bother the federal bureaucrats. The EPA argued thatโ
- The Sackettsโ lot lay beside a 30-foot-wide road;
- on the other side of the road was a non-navigable water ditch;
- the ditch flowed into a non-navigable creek;
- the non-navigable creek flowed into Priest Lake;
- although Priest Lake is located wholly within the State of Idaho and is not a trade route, tourists sometimes used it; so
- the EPA had designated the lake as โnavigable,โ and therefore
- the EPA had jurisdiction over the backfilling of a lot 30 feet away from a non-navigable ditch entering into a non-navigable stream entering into an isolated lake that was โnavigableโ because the EPA had declared it so.
All of this might sound like a joke. But the EPAโs threat to fine the Sacketts up to $40,000 per day certainly was no joke.
What the Supreme Court just did
Last yearโs case of Sackett v. EPA has a happy ending. The Supreme Court unanimously told the feds to back off.
But farmers, ranchers, and other land owners still could fear the feds would come for them next. At any time, land owners might be subjected to obliterating financial penalties for draining a mudhole or being insufficiently kind to some federally-favored species.
In the Loper Bright case, the Supreme Court reduced the threat. By discarding the Chevron Doctrine, the court assured that when the Deep State attacks a citizen, the citizen will have more of a fighting chance.
At least if it looks like the agency exceeded its legal authority, that question now will be tried by a courtโnot by the agency itself.
This articleย first appearedย inย Complete Coloradoย on July 4, 2024.
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