I am writing this letter on the afternoon of July 4th, so it is natural to think about our government and independence. I want to comment on the Chevron case which is blowing up my X (Twitter) feed as well as my news feeds, both for and against. It is both less and more than many of the quick reactions. I would like to interject a little calmness, as not a great deal will immediately change, but it will change our experiment with self-government. Long-time readers know I have not been a fan of the Chevron deference. I think it was one of the worst decisions of the last century. I've been aware of it because I'm in a regulated business. Some 15 years ago my friend Rod Martin gave me a deep dive into Chevron, and we have discussed it on and off since then. Rod is a lawyer and was a very early hire at PayPal, part of the original PayPal mafia. His shortened resume: “Rod Martin is a venture capitalist, technology entrepreneur and futurist from Destin, Florida. He was a senior advisor to PayPal founder and CEO Peter Thiel, served as policy director to Governor Mike Huckabee, and was thrice elected president of the National Federation of Republican Assemblies.”

Representative Government vs. the Priesthood of Experts By Rod D. Martin The Supreme Court’s overturning of Chevron was an early Independence Day gift. Chevron stood for an imperial bureaucracy, neither responsible to the people nor accountable to anyone, a priesthood of experts pursuing what Thomas Sowell called “the vision of the anointed,” interpreting, adjudicating, and above all, making the laws we must live by, however they saw fit. Last week, in their Loper and Jarkesy rulings, the Court overturned that half-century travesty, partly upending the statist technocratic order and, at least to a degree, replacing it with the Constitutional vision of the Founders. James Madison would be proud.

The Administrative State: Subject-Matter Dictatorships To understand the principles at stake, we first must grasp the radical shift in governance represented by the advent of the administrative state a century ago. The Founding Fathers established responsible government: elected leadership that must regularly stand accountable for its actions and their effects. Their Revolution explicitly repudiated the idea of lawmaking and enforcement by far-away elites, in favor of that government which was closest to the people. They recognized the benefit of continent-wide (though not unelected or transoceanic) policy on a handful of key issues; but to achieve that, they created multiple competing elected bodies to check each other’s hubris, and they wrote a Constitution that restricted their new government to only a short list of subjects. Why did they do this? Because they had experienced the tyranny born of unrestricted arrogance. And while they knew they couldn’t change the nature of man, they could use competition among men to restrain man’s more venal and predatory impulses. They thus also created a very small bureaucracy, every part of it directly accountable to one or more elected officials. With no Civil Service Act, and a Senate elected by the state legislatures, if your mailman kicked your dog, you could go find your state representative at the coffee shop and complain. Enough complaints and change was certain: elected officials have a lot of incentive to listen. Over time, usually for practical reasons but increasingly motivated by a very real shift in philosophy, not only did government grow exponentially, but elected officials became both more remote and less able to help. We decided we wanted to “protect” bureaucrats from the “spoils system,” so we made it nearly impossible for presidents to fire them. We decided to delegate vast authority to those bureaucrats, people whose only constituents, aside from their current bosses, were the companies and interest groups who might hire them later. We did this in the name of “nonpartisanship” and “expertise.” By the end of the New Deal, we’d curbed representative government at every point, in favor of a permanent unelected elite. And while we did not create a true unitary state as other countries did in the 1930s, we did establish a sea of subject-matter dictatorships: unaccountable entities with nearly unlimited power in their assigned areas.

In short, Chevron established constitutionality by longevity. You can apply that logic to Plessy v. Ferguson which said in 1896 that segregation was legal within limits and tell me whether you think it’s a good idea. Jarkesy and Juries, the Bulwark of Your Liberty But Chevron did more and worse still. Chevron implicitly eliminated your Seventh Amendment right to a jury trial, by largely eliminating your right to appeal an ALJ’s ruling to an actual, constitutionally authorized Article III court. Let’s say that again: Under Chevron an agency could sue you in front of its own judges, over its own made-up rules, enforced by its own bureaucrats, and you had no right to an appeal. You didn’t even get a jury of your peers. That last bit is the keystone, the philosophical crux, of the entire matter. It is the core of the disagreement between King George and George Washington, between Madison and Marx. (The legal trail goes back to Marbury vs. Madison. This is a big deal! —JM)

The Founders’ Vision vs. “Our Democracy”

When power is vested in the elected branches, as our Constitution requires, you have exactly that power every election. The Chevron philosophy is the opposite: technocratic at best, socialistic at worst, without accountability always. But technocracy is failing, and losing legitimacy, everywhere. There’s a reason for the increasingly global populist revolt: The self-anointed elites have lost all touch with those they rule (and rule they do, not serve). George Friedman writes about this, and what he believes will come next, in his excellent The Storm Before the Calm. From a somewhat different direction so does Neil Howe in his brilliant The Fourth Turning Is Here. The Founders’ answer was and surely would be smaller government; but even if they could not make government smaller, at the very least they would shift its power back to the elected branches and thus the election process. Give individual House members and Senators enough staff to actually oversee the government we have. Force agencies to defend their “brilliance” before real, constitutional courts. Force Congress to actually legislate, rather than (now unconstitutionally) delegating its powers to the bureaucracy. The Founders’ vision gave us the America we know, the tiny colonies huddled along the Atlantic coast that in barely more than a century grew into the colossus of the world by attracting millions to its opportunity and liberty, and by harnessing their talents “like an invisible hand” to create a near-universal prosperity unknown in all the history of man. Liberty is chaotic, and brilliant, and wildly innovative; and that innovation is called forth by a system that does not direct, but rather allows everyone to imagine the better future that would come from solving other people’s problems, and then doing so not through top-down coercion but through the marketplace. For millennia, the aristocratic, elitist vision produced a stultified world in which as late as 1800 fully 94% of humanity lived in extreme poverty. Freedom has doubled life expectancy, put a supercomputer in the hands of billions, and upended tyrannies as old as the world. But this century-old debate is far from over. Increasingly hostile to the Constitutional order our Founders gave us, many evidently believe technocracy is essential to what they call “Our Democracy.” They are increasingly clear that "Our Democracy" means a priesthood of experts, shielded from accountability or responsibility, making decisions "for the good of the people" without their involvement or consent. In short, "Democratic Centralism."

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