Why We Can't Have Nice Things

Lately I can’t help but recall the spring of ’92, when me and my elementary school chums were the absolute terror of our afternoon school bus. Kindergartners and the meek cowered as we bad boys cursed, hollered, battled for the back rows, and enacted some rambunctious mix of Pleasure Island and Lord of the Flies. Among our most popular pastimes was “crab fighting,” where cocky young scrappers would lodge ourselves into opposing benches and kick and kick until the weaker gave in. I still fondly remember the moment I planted a clean shoeprint right in the middle of a rival’s face that stayed visible for days. (He’d had it coming!)

But we kids only had free rein about half the time, depending on the bus driver. One, the irascible Mike, was terrifying and kept us largely in line with his stubbly scowl and barely restrained rage. The second, the affable Dick, was the kindest, sweetest pushover any young punk could ever hope to exploit. Mike had been known to pull over and threaten to kick our little asses, but no matter how obnoxious and unruly we got good ol’ gentle Dick would always smile into the front mirror and amiably call out “siddown back tharr.” Technically we were supposed to respectfully address the drivers with their last names, but as blue collar guys otherwise employed for facilities maintenance their first names were embroidered right there on their shirts. Nobody ever dared call Mike by his given name, but plenty of cheeky scamps got a lot of mileage out of various Dick jokes they thought were original.

(In regretful hindsight I’ve come to understand more about the uncomfortable class dynamics at play, and the profound awkwardness of these working class men being stuck ferrying spoiled little shits along leafy suburban boulevards back home to mansions with BMWs in the driveways. When the guys were done dropping us off and parked the bus back at the lot, they’d likely climb into weathered pick-ups and fight traffic through long commutes out to the exurbs.)

There was one climactic afternoon I’ll never forget. Dick was up front driving, and the bus was more raucous than ever. We’d gotten more “siddown back tharr”s than usual and even a handful of “I told ya to siddown back tharr”s with uncharacteristic notes of strain. At some point, somebody yelled “Hey Dickhead!” and launched a Nerf football straight at Dick’s head. I don’t know if it actually hit him or not, but the bus screeched to a halt and he exploded like I’d never seen anyone explode before. I couldn’t really absorb any of the words—his bellowing felt more like a hurricane on the verge of washing us all away. One thing was clear: we’d taken too much advantage of this quiet man’s gentleness and good nature, and broken him.

I never saw Dick again, and always hoped that he’d simply stopped driving rather than lost his job altogether. Scary Mike took over entirely, and riding the school bus was never much fun after that. In all of our giddy excess, we’d killed the golden goose.

Which is why the memory’s stuck in my mind since the Supreme Court’s bombshell rulings in Loper Bright Enterprises v. Raimondo, Relentless, Inc. v. Department of Commerce, and several other landmark cases in recent days, overturning so-called ‘Chevron deference’ and supposedly plunging daggers into the heart of the administrative state. Stretching back forty years, the Chevron precedent had held that courts should defer to ostensibly “reasonable” interpretations of legislative statutes from the credentialed experts in executive agencies. And speaking as someone who majored in public policy, that might once have made a ton of sense.

The unfortunate reality is that most workaday judges, not to mention pontificating politicians, know precious little about the bewildering ins and outs of the fractal policy landscape. The revolving door between bureaucracies, industry, academia, and the countless NGOs somewhere in between might be distasteful, but it includes almost everybody who actually knows what they’re doing. So some lingeringly idealistic part of me is sorry to see Chevron go and federal agencies’ wings clipped.

But as I witnessed during my disillusioning years covering Columbia Law School, the workings and broader culture of the administrative state have become hopelessly corrupted. To be sure, there are still many ethical public servants operating with integrity, but there’s also more than a critical mass of brass-knuckled politicos scheming executive skulduggery to force through policy changes they would struggle to legitimately pass in Congress. The problem quietly metastasized for years, often via agencies colluding with outside groups on creative ways to “sue and settle,” but it was the shocking imposition of DACA in 2012 after President Obama had repeatedly insisted it was illegal that sparked a full-blown constitutional crisis.

In this day and age that’s come to seem almost quaint. From contriving disingenuous rationales for paroling hundreds of thousands of illegal immigrants to shifting hundreds of billions in student loan debt to the public in brazen defiance of the Supreme Court, the Biden-Harris administration has been typified by shameless, gleeful abuse of power. A vicious cycle has become entrenched in which Congress (or K Street, rather) lazily slaps together ambiguous legislation with the assurance that someone else will determine what it really means, which in turn encourages the executive branch to run ever further wild. But like us entitled brats on that school bus long ago, the administrative state didn’t know when to stop and finally went too far. I would much prefer to live in a society with a governing class who can be trusted with discretion, who deserve Chevron deference, but that’s not America’s governing class anymore, if it ever was.

All in all, the impact of the recent rulings might not be as dramatic as some fear and others hope. Previous decisions had already gradually whittled away at Chevron, which had arguably become largely symbolic, and much of the judiciary remains ideologically committed to rubberstamping whatever agencies say, at least when they like who the President is. The likeliest outcome is further grinding institutional paralysis and even more lucrative paydays for fancy law firms as endless appeals wind through the courts. Thoughtful majoritarian policy benefiting the American people remains but a distant dream.

Dumping Chevron is a tragedy, but retaining it after so many abuses would be even worse. If there’s any way forward, of cultivating good faith and restoring public trust, it will have to come from hard-earned legislative consensus rather than cheap executive fiat.

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Next: Bushleaguer

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