Don Wolfensberger at The Hill:
A favorite campaign tactic of members of Congress, regardless of party, has been to attack “those unelected bureaucrats” for trying to regulate every aspect of our lives. At the same time, Congress has often avoided enacting detailed rules for administering and enforcing its enactments. It has been content to take credit for its do-good, feel-good laws and leave it to the agencies to fill in the blanks for achieving the laws’ lofty objectives.
If affected constituencies raise Cain about being hamstrung by regulations, Congress plays the blame game and castigates those poor, misguided bureaucrats.
The first step of the Chevron doctrine was that the courts should always first determine if Congress has provided clear lines of intent over areas of potential dispute. If it has, end of case. Only if it has not done so should the courts defer to the agencies to resolve any ambiguities.
One way to avoid disputes is for Congress to be more precise in drafting laws so as not to leave it to others to define its original intent. Congress should no more want to be dominated by an “imperial judiciary” than it already has been by “an imperial presidency.” Loper should be a wakeup call for Congress to restore deliberative lawmaking for the public good.