Government is too big and finally the judicial branch of the federal government has stepped in to dial back the power of the executive. Individual freedom of all Americans is in danger when one branch of government has too much power. Right now, the executive branch has acted as if they are allowed to write the laws that they enforce. At least with regard to certain regulatory actions, the federal courts have finally put some restrictions on the power of the Biden Administration to issue new laws by executive fiat.
With all the controversy over the Supreme Court’s decision in the Trump immunity case, a landmark case that restores the balance between regulators and private enterprise flew below the radar. The case, Loper Bright Enterprises v. Raimondo, is important because it reestablishes the proper balance between the legislative and executive branches of the federal government. This case was rightly decided, yet many on the left are losing their minds because they can’t use the power of government to force decisions on the most important job creating companies in our nation.
The Loper case held that unelected bureaucrats don’t have the constitutional authority to write law where Congress decided to stay silent. Under the Constitution, Congress passes laws, and the executive branch enforces these laws. Unelected bureaucrats in the executive branch are not allowed to write law, and to add to existing law, to give themselves more power to regulate. Separation of powers allows each branch of government to check the power of the other. The Loper case stopped overreach by aggressive bureaucrats while restoring the idea that there are limits to federal power.
This decision will help the American economy to grow without the arbitrary restrictions of anti-business regulators who want to use the power of government to force a change in behavior of corporations. This case has haunted us since 1984 when the Chevron decision was released by the Supreme Court that allowed the administrative state to grow in manpower and power.
Now it is time to further reel in an out-of-control administrative state. The death the Chevron doctrine should raise questions about how the administrative leviathan sees its authority to impose restrictive regulations that dramatically hinder the freedom of U.S. businesses to do their jobs. A good example is a filed action by the U.S. International Trade Commission (ITC) by Big Tobacco company, RJ Reynolds, to use the power of government to hinder a competitor. In the wake of Loper, this action should raise questions about how companies are using other avenues of the administrative state to achieve their narrow business objectives when their traditional administrative state has failed them.
The company, RJ Reynolds, is attempting to use the power of government to get a temporary exclusion order from the ITC, a very rare request that has only been granted a few times in the history and in very different circumstances. Because this is a rare remedy, Congress, not government officials at the ITC, should be making these important decisions. It appears that the Biden Administration’s bureaucrats at the ITC are doing favors for the Big Tobacco company.
Congress should be asking the Biden Administration why they have flip flopped on the proposed menthol ban and whether this was because Big Tobacco ordered that outcome. It is a waste of resources by the ITC to even consider doing favors for one company who continue to ask the Biden Administration for remedies which would only benefit them and force out smaller players from a needed diverse marketplace. Bureaucrats unauthorized war on vaping is objectionable and seems to be favoring one company over another. Cronyism has no place in government.
Congress passes the laws, and the executive officials enforce them. Leave it to the judicial branch of government to interpret the laws, not bureaucrat at the ITC. Our Founders wrote a constitution with a separation of powers to protect individual liberty. Now is the time for the Loper doctrine to be extended to stop other government bureaucrats from trying to do an end around that case.
The reason why we have so many freedoms in our nation is because we have a Constitution’s Bill of Rights that restricts the right of government to take away natural, God given, rights of man. We also have a separation of powers that disperses power in three branches of government. When one gets too big, individual freedoms are at risk. The Supreme Court has done an excellent service by striking down Chevron and now we need even more guardrails on the executive branch to stop them from gathering up too much federal power.
Brian Darling is former Counsel for Sen. Rand Paul (R-KY).
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