Chevron Deference Builds the Administrative State

Those seeking to hold the FDA, CDC, NIH/NIAID, DoD and DHS accountable for injury caused by their gross mismanagement of the COVIDcrisis often attempt to turn to the Federal courts for legal redress. Unfortunately, in addition to the layered specific legal indemnification provided by the congressionally approved PREP act, CARES act and Countermeasures Injury Compensation Program (CICP), since 1984 there has been a general legal position that the (unelected) third branch of government, the courts, will defer to the “expertise” of a fourth, unelected branch (the administrative state) and its permanent federal employees (embedded within the “elected” executive branch) when confronting a scientifically or technically controversial subject.

The administrative state as well as its Senior Executive Service and GS-rank staff arrogantly and unconstitutionally consider themselves to be the permanent employees of the US Federal Government, and consider the elected officials tasked with funding, oversight and management of these agencies (Congresspersons and the POTUS) merely temporary employees.

The Chevron Deference doctrine legal policy established by the Supreme Court in 1984 has become a keystone of US administrative law, and forms the legal basis which enables this extra-constitutional fourth branch of government. This decision has played a central role in enabling the explosion of administrative state power and authority seen since that legal decision. Subsequent to the majority opinion justifying the decision which underpins the “Chevron Deference” doctrine, the assertion by the Supreme Court that the administrative state represents an “elected” branch of government has become transparently absurd.

Focusing back on the COVIDcrisis, what this means (in a practical sense) is that when there is a difference of opinion regarding science or technology issues between the “official” policy of a federal agency (the defendants) and someone or some group seeking to sue for legal redress consequent to damages caused by arbitrary and capricious actions of that agency or its personnel (the plaintiff(s)), then the courts will generally side with the federal agency. The underlying assumption being that federal agencies are always correct in their interpretation of scientific and technical issues and how they apply that interpretation to the statutory authority granted to them by Congress.