By now most who watch such things are familiar with the opinion issued by the Supreme Court in the case Loper Bright Enterprises et al. v. Raimondo, Secretary of Commerce, et al. on June 28, 2024. Loper overturned an opinion issued by the court in 1984 titled Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.
The Chevron “precedent” required federal courts to defer to federal agency interpretations of law when the law at issue was ambiguous and, therefore, subject to interpretation. The effect of the Chevron “precedent” was to transfer certain authority for statutory interpretation away from the court and deposit it in the hands of unelected and, therefore, unaccountable bureaucrats. Stated otherwise, Chevron tended to reverse the role of the court in the process of “judicial review” which was established in 1803 in the case Marbury v. Madison.
Since Congress has a particular knack for writing vague or ambiguous law and letting the agencies “figure it out,” the Chevron “precedent” is said to have transferred substantial quasi-judicial power to agency staff at the expense of the judicial role. Chevron is, therefore, credited with accelerating growth of the “administrative” or “deep” state — a “shadow government” of sorts functioning, in effect, according to its own interpretation of its enabling statutes.
The point to be made here is that the Chevron ruling arguably represented a measurable breach of constitutional structure, as that structure was established by the court in Marbury v. Madison. The effect of this breach may be likened to the breach of a dam impounding a river. With this breach of constitutional structure, an unelected shadow government, arguably extraconstitutional and with expansive powers, unleashed a regulatory flood upon the land.
After 40 years, the Loper ruling has righted this historical wrong. The net effect of this remedy is that Congress will be compelled to exercise its legislative authority with greater particularity, agency staff will be disinclined to engage in regulatory adventurism, and the impartial interpretive role of the court is substantially restored. As more precise laws must now be made through the legislative process, thereby restricting regulatory latitude, democracy itself is substantially restored. However, in the nature of a wounded beast, these restorative consequences have given rise to shrill wailing and charges of “judicial power grabbing” coming from those whose power has been diminished.
Now bring this narrative around to the matter of federally owned public lands. An impartial review of the formative history of the federal territorial system will affirm two essential facts.
First, congressional authority for establishment of local governments within federal territories is derived from the Northwest Ordinance, not from the treaty power of the United States or from congressional Property Clause authority as originally maintained by the court in the case of Sere v. Pitot. Under authority of the Northwest Ordinance, Congress is authorized to establish and supervise temporary local territorial governments, but it is not authorized to be the local municipal government over them. From Benner v. Porter, “[Territorial governments] … are the creations, exclusively, of the legislative department, and subject to its supervision and control.”
Second, the Property Clause is a delegation of constitutional authority and duty to dispose of federal territorial and public lands. “The power being given, it is the interest of the nation to facilitate its execution,” according to McCulloch v. Maryland, speaking of constitutionally enumerated federal powers.
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