The U.S. Senate investigation into Boeing’s safety practices and the FAA’s ineffective oversight revealed that Boeing, under pressure to prioritize production speed over safety, suffered quality control issues that endangered consumers. Despite these risks, the FAA’s overreliance on industry insiders failed to address Boeing’s deficiencies. The problem is not regulation; the problem is deferential inheritance.
At one extreme, industry insiders have too much influence over the regulatory process, leading to lax enforcement and compromised safety. Conversely, as with the Consumer Financial Protection Bureau’s targeting of digital intermediaries, activist bureaucrats use their unchecked power to push overreaching agendas.
Both extremes highlight the dangers of deferential governance, where elected legislators defer their lawmaking responsibilities and the judiciary defers legal interpretation to unelected bureaucrats. This leads to the erosion of the foundational concept of the separation of powers by consolidating all three branches of government into the agencies and departments of the executive branch.
We now find ourselves in a modern feudal system, where agencies have evolved into powerful fiefdoms ruled by bureaucrats who attempt to micromanage every market aspect. This deferential inheritance—where constitutional powers have been delegated—has allowed regulatory bodies to operate without proper oversight.
The result is a concentration of legislative, judicial, and executive powers in the hands of regulatory agencies, closer to authoritarianism than the system of checks and balances the Founders intended.
While some in Congress—such as Senators Mike Lee and Rand Paul—are fighting to pass the REINS Act to correct course on the legislative side, the Supreme Court’s decision to overturn the Chevron doctrine provides us with a tremendous opportunity to reverse the tide of deferential inheritance.
The decision to strike down the 1984 decision in Chevron v. Natural Resources Defense Council is perhaps the most significant victory for the American people in curbing the unchecked power of the regulatory state. For decades, Chevron doctrine empowered federal agencies to interpret ambiguous statutes, often without meaningful judicial surveillance, giving rise to an era of bureaucratic overreach.
Now, with this reversal, there is a monumental opportunity to rein in the growing trend of governance by executive decree—one embraced by figures like Vice President Kamala Harris and Minnesota Governor Tim Walz, who have jointly advanced plans to bypass Congress in favor of governing almost exclusively through the Executive Branch.
Meanwhile, agencies like the Federal Communications Commission (FCC), the Consumer Financial Protection Bureau (CFPB), and the United States Department of Agriculture (USDA) continue to wield disproportionate power, threatening to disrupt the delicate balance of the free market.
This decision is the greatest gift to the American people, offering a pathway to dismantle regulatory capture and return lawmaking power to elected legislators from the clutches of unelected bureaucrats. But, like an unrealized stock market gain, this gain must be realized before the opportunity is lost.
The CFPB provides a prime example of regulatory capture in action, targeting sectors far beyond its original mandate. The agency's recent crackdown on digital intermediaries—such as comparison shopping tools and lead generators—demonstrates a troubling trend of arbitrary enforcement. The CFPB is undermining tools millions of Americans rely on to compare prices and make informed purchasing decisions by misclassifying these platforms as financial entities subject to its authority. This is not consumer protection; it's bureaucratic interference and will inevitably stifle market competition.
At the same time, the FCC’s pending one-to-one consent rule threatens to add another layer of complexity, curbing the efficiency of communications between businesses and their customers. This creates another burden for businesses with unnecessary compliance hurdles.
These agencies are overstepping their bounds, and without swift action to rein in their reach, the regulatory state will continue to obstruct economic innovation and individual freedom. The reversal of Chevron doctrine offers a timely chance to stop this overreach, but only if we capitalize on it.
Cases of executive branch overreach through deferential inheritance are seemingly endless. The USDA, helmed by former big dairy lobbyist Tom Vilsack, and the National Institutes of Health (NIH), the agency previously under the direction of Anthony Fauci, offer just a small glimpse.
These agencies have unilaterally interpreted legislation such as the Animal Welfare Act and Humane Methods of Slaughter Act to exclude many of the farmed animals and animals used for invasive experimentation the bills were written to protect. Capitalizing on the overturning of Chevron takes the interpretation of these laws out of the hands of unelected bureaucrats. It removes the incentive to cater to the corporate influences that run counter to the intent of such legislation.
The good news is that some initial efforts are underway to solidify this new judicial check on executive power. On July 3, 2024, U.S. District Judge Ada Brown of the Northern District of Texas issued a preliminary injunction against the Federal Trade Commission’s (FTC) proposed non-compete ban, a clear signal of the judiciary’s growing willingness to block agency overreach.
While this ruling currently applies only to the plaintiffs in the case, including the U.S. Chamber of Commerce and Texas business groups, it should ignite a broader judicial trend that seeks to limit the unchecked power of federal agencies in light of the Supreme Court’s Chevron reversal.
Deferring legislative and judicial authority to unelected bureaucrats and corporations is not how a constitutional republic operates; it’s closer to fascism, and it doesn’t matter who’s President.
It’s time for Congress to take back the authority it has ceded, for the courts to continue scrutinizing executive overreach, and for the American people to demand accountability. We must capitalize on the Supreme Court’s decision and push for reforms that will curtail the power of these agencies. Otherwise, the regulatory state will continue to grow, fed by the same unchecked and inherited deference that allowed it to metastasize in the first place.
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Patrick M. Brenner is the founder and president of the Southwest Public Policy Institute, a nonprofit research institute in the American Southwest dedicated to promoting better living through better policy.
Liam Gray is the founder and executive director of the Wilberforce Institute, a pro-liberty and anti-cruelty think tank, which promotes policies that advance the free market and oppose animal cruelty