As my almost-adopted son, Cristian Farias, twitted:

Chevron: Law of the land for more than 30 years. #SCOTUS said that judges should generally defer to agencies’ regulatory interpretation.

— Cristian Farías ? (@cristianafarias) March 21, 2017

So why shouldn’t Chevron remain precedent? What’s changed? This arises in the context of confirmation hearings for Tenth Circuit Judge Neil Gorsuch to the Supreme Court, as he’s no fan of Chevron deference.  But Cristian is right. It’s precedent, that the court must defer to the administrative agencies charged with the execution of a law to resolve any ambiguity in the law. So why change?

In the early days of a duly enacted, but perhaps vague law, there are administrative issues to hash out, application of the law, whether the words or, in many instances, the purpose, as left by Congress in the hands of the “experts.” And indeed, Congress often did a lousy job, whether because they were lazy, needed political cover, couldn’t reach consensus or just didn’t really know what the right answer was, in enacting laws that would demand some serious expertise in executing.

But that’s the early days.

During the Gorsuch confirmation hearings, the judge was asked about this by Sen. Dianne Feinstein, whose legal acumen is legendary. She asked, why he wasn’t a fan of Congress’ scheme to enact careless laws and leave them to bureaucrats to figure out later? That was not, of course, her word choice.

In response, Gorsuch distinguished the exercise of agency expertise in the finding of facts, but not the holding of law. It was the province of the courts, he replied, not unelected bureaucrats, to say what the law is. And it was most assuredly not, as he used the Gutierrez-Brizuela case as an example, the place of a bureaucrat to overrule an Article III judge.

The distinction between law and facts is a fine one in a vacuum, but is hardly so simple or clear as the words might convey. Many cases involve mixed questions of law and fact, and trying to thread the needle may prove impossible. But is there a very different issue at work here, when, as Cristian notes, we’re 30 years down the road from Chevron deference?

In those 30 years, laws have been hashed out, applied, explained, executed, to the extent they were meant to be when Congress enacted them. Sure, new situations arise, new technologies, but the application of regulations and guidance doesn’t give rise to entirely new interpretations of the words and concepts. Rather, as Judge Gorsuch suggested, these are generally findings of fact, not law.

In other words, there is a role for bureaucrats to address changes in the world in which they’re asked to administer laws. These are the new challenges, and someone has to make them happen. For some agencies, the challenge is greater than others. For some, like the EEOC, which deals with people, there may be new situations in which people find themselves, but people don’t change. What changes in an ever-expanding universe of authority over people. What started in the ordinary workplace has taken charge of the universe.

Administrative agencies get bored, tired, purposeless. Then a new administration comes in and wants to do something. People who don’t care for the way the law was decide to push for the way they want the law to be. Agendas get created by bureaucrats, and they view their enabling statutes, already subject to the regulations and guidance established over the years, as a mere launching pad to their new purposes. They have a cause. They have an agency. They can make it happen.

This was never what Chevron deference was meant to allow. It wasn’t a blank check, to push from fleshing out the execution of the law into new, heretofore never considered realms of law, with the only requirement being that they feel strongly and can cobble together some jargon to create the appearance of there being some attenuated connection between the enabling law and their dream for the future.

It’s not for lack of good intentions, but when you’ve already slain the dragon you were created to overcome, what do you do? Do you say thanks and close up shop? Not in government. You go in search of new dragons to slay. Not the dragons those old bureaucrats feared. Not the dragons Congress was concerned about when it enacted the law that created an agency’s existence. New dragons. Your dragons.

An example? Sure. Title IX of the Education Amendments and the Department of Education’s Office of Civil Rights. That was the law that provided:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

See anything in there that compels colleges to create campus rape and sexual assault adjudication procedures? See anything in there that implicates individual “peer to peer” prohibitions? What about dirty jokes? Microaggressions? And where a school is required to let a transgender person pee? Or that you have to be roomies with someone with the opposite equipment between their legs?

One can create dots, and more dots, and then a few more, and connect them up to a rational line from the start to where OCR is now, but if you step back and take a hard look, unblinded by beliefs, you realize that you’re now a million miles away from the law that birthed your agency and its authority.

No matter how right you think this extension may be, it’s not what Congress authorized. It’s law manufactured by bureaucrats, and courts are constrained to let this happen because of Chevron deference? The doctrine may have made sense in the early days of congressional laziness, but as agencies creeped further and further from their mission, the pretense of “expertise” was exposed as a rationalization rather than a rationale. It’s not about expertise, but agenda.

This is not, and never has been, a commentary on what should be done about discrimination or rape, but upon what bureaucrats have taken this law to mean. Ask the people expelled from school as a result of their forays into campus “justice” whether they were excluded from participation as a result of sex?

It may be the baby steps problem, that no individual baby step away from the core of the law seems so terribly radical, but over time, enough baby steps take you far enough away that you can no longer find a rational basis for how you got from the law to where you now are. It may be the slippery slope, as one step onto the slope begins an inevitable slide to the bottom.

It doesn’t really matter how it happens, but the creep away from the purpose for which an administration agency exists, from the purpose it has fulfilled, can and frequently does happen.

This is not a condemnation of all agencies, or all expertise. Indeed, the agencies’ expertise may well be enormously influential, not because of forced deference but permissive deference, persuasiveness. But after 30 years, missions creep until they bear little resemblance to the justification of the enabling legislation. These are purely legal issues, whether the law enacted by Congress to end one ill entitles an agency to decide for itself to end other ills.

The question of Chevron deference isn’t one of refusing to allow agencies to do their job, or even telling them what their job is. The question is whether the agencies get to tell the courts what their job is, or dictate to the courts that their interpretations of their enabling legislation is more right than the judges hold it to be. After 30 years of Chevron deference, and an administrative bureaucracy that has had a free hand holding a huge bludgeon, it’s time to bring this judge-made doctrine to its natural end.