Chevron Deference Defers to Metcalfe’s Law
Chevron Deference Defers to Metcalfe’s Law
The Supreme Court just made America smarter and richer.
These days, news about Donald Trump and Joe Biden stomps all over everything, and yet big events are happening elsewhere, and with the added infusion of innovation, they are likely to reverberate far beyond the next presidential term.
Case in point: Loper Bright Enterprises v. Raimondo, in which the Supreme Court, by a 6-3 margin, reversed a 1984 decision, the so-called “Chevron deference.”
Under Chevron deference, courts were instructed to acquiesce to regulatory agencies’ interpretations of Congressional intent. In practice, this meant allowing bureaucrats—most notably, the green activists at the Environmental Protection Agency—to freelance their own interpretations of statute.
For instance, when Congress wrote the Clean Air Act in 1970, it didn’t mention carbon dioxide as a “pollutant,” and yet the EPA, relying on its expertise (with help from the Sierra Club, et al.) chose to regulate it anyway. Why? Because that’s what empire-building zealots do.
This egregious overreach was screeched to a halt by the Supreme Court in 2022, in a decision anticipating Loper Bright.
As for the molecule in question, we can add that Congress, the proper source of federal law, has never regulated, and likely will never regulate, CO2 the way that it regulates, say, lead or arsenic. Oxygen is well known for its salubrious impact on life, and carbon is the fourth most abundant element in the universe—it’s central to any and every organic compound. Carbon should be treated as a resource to be converted, not as a toxin to be shunned.
So if the EPA’s “experts” think CO2 is a pollutant, then the rest of us need a second opinion. Happily, that’s exactly what the Supreme Court has now guaranteed—the right to a fair hearing, not an Al Gore Star Chamber.
Interestingly, when Chevron deference emerged four decades ago, it seemed to be only a small point of procedure. Yet with the mutagenic help of the bureaucracy, the NGO-cracy, and the media-cracy, Chevron grew like a tumor. According to one study, “Chevron had been cited in over 18,000 federal court decisions and had been invoked to uphold at least hundreds of agency actions. No doubt, behind the scenes, Chevron has influenced agencies’ approaches to countless other decisions.”
Of course, this much power in the hands of Deep State Cthulhus—interspersed, of course, with the depredations of myriad Lois Lerners and DEI-niks—caused a backlash, culminating in Loper Bright. In the summarizing words of the Federalist, “The high court’s decision marks a major victory for the conservative legal movement, which has spent four decades seeking to dismantle the unchecked power awarded to unelected bureaucrats.”
Of course, the unelected bureaucrats, and their now-checked power, still have their fans. Such as Laurence Tribe, the former Harvard Law professor-turned-prolific-X-man, who tweeted, “The ones I feel sorry for are my administrative law colleagues who built their courses and careers around the intricacies of Chevron deference.” Dear reader, it’s your choice: This is either the greatest self-own in history, or else Tribe has a very, very, droll sense of humor. Cry, the Beloved Bureaucracy!
Yet if we look up from the cubicles, we can see the larger impact of Loper Bright. Axios prophesied some likely effects: The “winners” are tech, including Big Tech, while the “losers” are “the activists and organizations that support stricter tech regulation.”
Sigh. We’ll just have to get used to more innovation.
More is surely coming, even as American tech is already a Schumpeterian juggernaut; relative to the world, the U.S. is gaining. Prominent analyst Mary Meeker reported recently that American AI boasts more than triple the investment of our next nine rivals (including China) combined.
This riot of innovation will continue, as well, in cryptocurrency. While some view the whole crypto thing as a scam, others see it as the, uh, building block(chain)s of a new economic and political order. But only if the pesky bureaucrats can be shooed away.
In fact, the cryptopians have been turning against Biden. The particular object of crypto ire is the 46th president’s pick to chair the Securities and Exchange Commission, Gary Gensler; his auto-actualized activism blossomed in the Chevron era.
So now the crypto keepers are supporting Trump, who pledges to “get out of the way of innovation.” Meanwhile, another Republican, House Majority Whip Tom Emmer (R-MN), cheered Loper Bright with vehemence, and then some: “The Supreme Court’s decision to overturn Chevron deference kneecaps the regulatory abuses of Gary Gensler and every other unchecked, unelected bureaucrat who legislates-by-rulemaking.”
Is crypto, or AI, or any of this tech, risky? Maybe even downright dangerous? Plenty of people think so, and in a properly balanced, post-Chevron environment, they have plenty of recourse: They can petition any of the three constitutional branches of the federal government—congressional, executive, judicial—demanding action.
But what folks can not do anymore is seek audacious action from the constitutionally fuzzy fourth branch of government: EPA, SEC, indeed, probably every regulatory agency—some 270 in all. Already, observers are totting up the likely impact of Loper Bright on transgenderism, net neutrality, and medical devices—to name just three of three zillion impacts.
Still, amid the regulatory revamp, it’s important to keep in mind that nothing in Loper Bright stops Congress from taking any action it might wish; the decision is a check on un-elected officials, not electeds.
To be sure, the day may come when conservatives don’t trust Congress to protect their rights. After all, if Washington, D.C. is powerful, then there’s always the risk that someone will seize the reins of that centralized power and go galloping off in the wrong direction.
We can add that it’s fair for liberals to hold the same fear. If the right doesn’t trust Democratic one-size-fits-all answers, the left doesn’t have to trust Republican one-size-fits-all answers. We the people, all 340+ million of us, are simply too diverse, in all possible ways, to fit on the same Procrustean bed.
Justice Neil Gorsuch made this point nicely in his concurrence with Loper Bright: “Chevron deference requires courts to ‘place a finger on the scales of justice in favor of the most powerful of litigants, the federal government,’” he wrote. He continued, “Chevron deference guarantees ‘systematic bias’ in favor of whichever political party currently holds the levers of executive power.” That’s not what any liberty-lover should want: the dominant central state leveraging the law to become more domineering.
Fortunately, there’s an answer to this dilemma: distributed power, aka federalism, aka states’ rights. It’s all in the Constitution, as well as in such important ancillary documents as The Federalist Papers.
For instance, in Federalist 45, James Madison wrote,
The powers delegated by the proposed constitution to the federal government, are few and defined. Those which are to remain in the state governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negociation, and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the several states will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement and prosperity of the state.
Madison saw the states as the compartmentalized bulwark against overweening federal power; to underscore that point, he later wrote the proto-Calhounian Virginia Resolutions.
Some will argue, of course, that the Constitution is antiquated and thus ill-suited to address national and global problems. After all, Madison & Co. were unaware of pretty much anything that we would today call “tech.” Yet since the even lower-tech time of Aristotle—the Stagirite being much studied by the Founders—true political wisdom has changed little.
Moreover, in a wondrous bit of serendipity, the timeless wisdom of the Constitution harmonically converges with the newfangled laws of Silicon Valley. Specifically, Metcalfe’s Law, which states, per Techopedia,
A network’s impact is proportional to the square of the number of nodes in the network. The focus is on the number of possible connections among the nodes. For example, if a network has 10 nodes (i.e., computers, servers and/or connecting users), its proportional value is 100 (10 x 10).
It’s the same basic point as brain cells: The more you have, the smarter you are. But one needn’t be a technologist or a biologist to see the same logic everywhere: The more traffic at a crossroads, or a port—or at a lemonade stand—the more value.
So let’s apply Metcalfe’s Law to Loper Bright and federalism. Absent the lowest common denominating wet blanket of the federal bureaucracy, the states will be free to experiment. In Metcalfean terms, that’s potentially 50 state nodes of experimentation, as opposed to one federal node. And to apply Metcalfe’s math, that’s 50 times 50, so a value of 2,500. Meanwhile for the federal government, it’s one times one, which is…one.
Now it can immediately be objected that the comparison of nodes to states is, well, apples to pixels. After all, the states, being established systems, are not so elastically responsive to new data as a neural network.
Fair enough. Without a doubt, some states will be just as stand-pat and sluggish as the feds, but over time, more states will try new things. And we can no more anticipate where that process will end up than we could have anticipated previous twists and turns of history and technology.
Indeed, if Trump wins in November, blue states will be blazing trails of anti-Washington assertion. And if Biden (or some other Democrat) wins, the red states will be going rogue. If the center cannot hold, that’s good news for the edges—and it’s the edge lords who try new things.
Yes, bring on these Brandeisian laboratories of democracy—because, at the same time, they can be laboratories of prosperity.
Here’s prominent tech investor Balaji Srinivasan: “Technology is about to accelerate. Because Chevron deference is over. And regulators can’t just make up laws anymore. So, countless new startups just became feasible.”
Crypto investor Marty Bent added, “Thanks to the Chevron deference ruling from the Supreme Court, the economy has removed an anchor that has been holding it back for more than a generation. The balance of power, as the founders designed it, has been shifted back in the right direction.”
Are these tech bulls right or wrong? We’ll find out. Because even if the Democrats hold the presidency and appoint the sort of SCOTUS justices who would try to restore the Chevron Deference, many states, tech tycoons, and ordinary folks are certain to #resist.
Forty years ago, Chevron Deference crept in on little cat feet, only to grow into a raging lion. But now that it’s been caged, those wishing not to be eaten are on guard. And, per Metcalfe, the guards will be empowered by new networks of nodes.
A watchful citizenry, undeferential to faux expertise, is a proven defense against arrogant encroachment. Chevronism has been repealed. In the future, states willing, any attempted return can be repelled.
The post Chevron Deference Defers to Metcalfe’s Law appeared first on The American Conservative.