SCOTUS, Ambiguous Laws and Bureaucratic Rule Making…

A recent article from, “Will a Supreme Court Case About Fishing Water Down the IRS?”, intrigued me. The case has to do with the IRS. Kiplinger is a financial website, so their article concentrated on the obvious tax implications of IRS interpretations of obscure laws. The following two paragraphs caught my eye:

“The IRS and the U.S. Department of the Treasury are responsible for implementing tax regulations. Due to the complexity of tax law, they often have to fill gaps in tax legislation passed by Congress. 

This is especially true when Congress drafts complex tax legislation at the last minute or amidst challenges on Capitol Hill, as is happening now with a bipartisan tax compromise proposed just weeks before tax season begins. In those and other instances, experts at the IRS and Treasury make interpretations and create rules to provide clarity to taxpayers.”

The implications of the rethinking the Chevron Deference, will have implications for a myriad of government agencies and their control over citizens. Our system of governance is based on compromise. Unfortunately, that often results in Congress passing compromised Laws, written in a manor that allows both sides to somewhat legitimately say, “I voted for this Law because I understood it to mean <blank>.” Under the Chevron Deference, this results in a bureaucratic agency effort to divine the meaning and write rules based on their interpretation.

In a perfect world, the agencies would do this even-handedly, with the rules being interpreted through an impartial lens. In reality, the agencies are controlled by the President’s Administration, leading to wild swings in policy based on the political party in office. This negates all of the compromise required to create the original Law.

Example #1 – The National Labor Relations Board (NLRB): This one hits hard for the construction industry. From their website, “The National Labor Relations Board is an independent federal agency vested with the power to safeguard employees’ rights to organize and to determine whether to have unions as their bargaining representative. The agency also acts to prevent and remedy unfair labor practices committed by private sector employers and unions.” In reality, board members are rotated and appointed by the President’s Administration. Because there is a general Democrat Union bias and a Republican Non-Union (Free Enterprise) bias, this board’s rulings swing wildly based on the political party in the White House and the appointments they make to this board.

Example #2 – Waters of the United States (WOTUS): For decades there have been rules protecting wetlands. All States have rules regarding wetlands, with varying degrees of protection, in attempts to balance property rights vs perceived public good. With theoretically good intentions, the Environmental Protection Agency (EPA) expanded the definition of WOTUS to include even minor wetlands, woodland wetlands, intermittent streams etc. bringing them under EPA control. In many cases this impeded or stopped development, and at times went so far as to deter existing farming practices. Currently, the courts have reigned this in, putting much of this control back in the hands of the States. In some cases this has caused a pendulum swing resulting in not only the repeal of current regulations, but even some long standing and accepted regulations on wetland protection Nationally and at the State level.

I could easily cite a half dozen more of which I’m aware. Suffice to say, that there could be big changes on the horizon… some good and some bad.

In theory, I’m very much in favor of a requirement that laws be clear. Jingoistic names for Bills should be ditched in favor of either a name that reflects what is included or just a number and no name at all. I’m also in favor of ending Christmas Tree Bills that have ridiculously unrelated items lumped together, under a name that often implies something completely different. (The Washington politicians that can say the Inflation Reduction Act did anything to reduce inflation with a straight face are truly scary!) For this reason I’d be in favor of the Line Item Veto, no matter which party is in office, as it would eliminate at least half the graft… (The Line Item Veto has been deemed unconstitutional, but it still seems like a good idea!)

Bureaucracies are a somewhat necessary evil, but they are never accused of expediting anything or being efficient. It would seem their main function is to perpetuate the bureaucracy. (Read up on the March of Dimes… They’re still around despite successfully completing their mission in 1949.) If the Chevron Deference is overturned, it will cause some serious shake-up. Some good could come of it though. Honesty and completeness in the crafting of Laws would be a good thing.

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