The Supreme Court last week reversed a decision from 1984 that was responsible for a dramatic turn in American life. The precedent was called Chevron deference. It said that judges should allow executive-department agencies to make rules that affect commercial and civil life, effectively giving them broad discretionary authority that displaced Congressional and judicial oversight.
The previous rule was designed to unclog the courts from endless litigation over legislative interpretations that was making life difficult for business. The unintended consequence of the shift in 1984 was to increase interventions but not from Congress or judges but from agencies, which blew up in size and authority over the course of 40 years. This was ripe for a hard challenge, and the Supreme Court certainly stepped up.
The new rule (from Loper Bright v. Secretary of Commerce) is that agencies cannot interpret laws as they wish but rather are restrained by the words of legislation from the people’s representatives.
The implications are profound.
Above all else, it means transferring responsibility back to the people and their representatives. It is part of a new form of populism that has come about in response to obvious calamities.
Think back to four years ago when agency deference was riding high, imposing an astonishing number of instant laws about medical matters, social distancing, business closures, masking, and even mail-in voting. It was all pushed through by agency authority having nothing to do with Congressional mandate.
Americans suddenly found themselves ruled by a system of government they did not know they had. Consider the declaration that essential workers could work but nonessential workers would need to stay home. Was that a law? Not really. It was more like an edict. No one knew who would enforce it or what the penalties were for noncompliance.
We know now that the declaration came from the Cybersecurity and Information Security Agency, a division within the Department of Homeland Security created in 2018. Its declaration was even more powerful and decisive over national life than the Department of Labor, which was never even consulted.
Again, this was not law and not legislation. It was edict and no one really knew how it came to be that this agency, about which no one knew anything, possessed this kind of power. The offending legal basis was precisely this Chevron deference, which tempted every agency just to go rogue and test out its powers whenever it wanted to.
In those months and years, we came to be ruled by credentialed experts, not all and not even most but those experts who had close access to powerful agencies. They overrode scientific consensus, popular will, and even settled law. It all happened so suddenly. The goal of crushing the virus through force was never plausible and neither was the notion that we could vaccinate our way out of a fast-moving respiratory infection.
For those still suffering from those days, and that includes nearly everyone, the Supreme Court’s decision in Loper (reversing Chevron) should provide some sense of relief. It will take time for the court decision to have a practical impact but the reality is that if the new rule had been in force four years ago, the nation would have been spared the pain of lockdowns and closures, and probably even the forced vaccination campaign.
The new rule is also consistent with a new governing ethos that is sweeping the world today, against arbitrary rule by powerful elites and toward more democratic accountability. That one idea is now unsettling political systems in the United States, UK, and EU, and beyond. It provides no light to describe this movement as “far-right,” as the New York Times says daily. It is something different.
We might call the ethos the new populism. It is neither left nor right, but it borrows themes from both in the past. From the so-called “right,” it derives the confidence that people in their own lives and communities have a better capacity for wise decision-making than trusting the authorities at the top. From the old left, the new populism takes the demand for free speech, fundamental rights, and deep suspicion of corporate and government power.
The theme of being skeptical of empowered and entrenched elites is the salient point. This applies across the board. It is not only about politics. It hits media, medicine, courts, academia, and every other high-end sector. And this is in every country.
This really does amount to a paradigmatic shift. It seems not temporary but substantial and likely lasting. What happened over four years unleashed this mass wave of incredulity that had been building for decades before. The final straw was the coercive pandemic response in which governments in the world issued stay-at-home orders, closed small businesses, restricted travel, forced masks on the population, and then mandated shots of an experimental technology.
All of this was generally celebrated by most large media outlets, endorsed by academia, and cheered by all respectable opinion. But this was not actually “common-sense public health.” It was radical and far-reaching, and there never was a clear statement of the end goal. Many jurisdictions locked us down until vaccination became available, and then made an effort to innoculate most everyone in the population.
That’s a big plan and it all turned on one key assumption, namely that the shot would work to end the pandemic. It did not work particularly well. It stopped neither infection nor transmission. Nor did the experts anticipate the levels of injury that would result from repeated uses of the same shot, even though the existing literature warned against that exact strategy.
Here’s the problem with blaming all experts for this fiasco. Many people with high credentials were warning against this approach the entire time. They were shouted down and censored. Many others believed that this was the wrong approach but they were prevented for career reasons from telling the truth.
This is the reason why the new populism is strongly committed to free speech. Without the opportunity to discuss and consider the evidence, we miss important truths and find ourselves blindly following the opinions of the most powerful.
To be sure, the word populism has something of a sordid history in the 20th century, mostly due to the political upheavals in the interwar period that profoundly affected industrialized economies. FDR spoke like a populist but so did emergent leaders in fascist Europe. This form of populism was very different from that in our own time. It rallied around the ability of experts to plan the economy and manage the culture.
For example, FDR’s first inaugural address struck populist notes by denouncing “the rulers of the exchange of mankind’s goods” and “the unscrupulous money changers” who “stand indicted in the court of public opinion, rejected by the hearts and minds of men.” In practice, he drew on credentialed expertise and agency power to remake many features of the U.S. economy, imposing price controls, industrial subsidies, tight rules on all commercial transactions, all with the goal of lifting prices under the mistaken belief that low prices were causing the depression.
The grand theory that drove the response to the Great Depression was rooted in the emergent thoughts of John Maynard Keynes, who flipped many features of classical economics on their head. In essence, his theory was that government itself should be empowered to manage the whole through careful manipulation of aggregate supply and demand, a dream that was never realizable or desirable.
In many ways, the New Deal ended up not as a populist effort but one that empowered an elite class of social and economic managers. The pattern grew worse and worse through the decades. The Chevron decision of 1984 codified it into law. But we saw the same patterns in the UK and in European countries. The movements were called populist but they all drew on scientistic schemes for improved economic and social management by imposition from the top.
We’ve been told to “trust the science” for the better part of a century. The push back against that paradigm had to wait until the apotheosis of central planning with the pandemic lockdowns, which were followed very quickly by efforts to use government power to control the climate. Together with that, and all over the world, the mass migration crisis unfolded as governments shifted from their core duties to aspirations of virus and climate control.
Now we find ourselves in the midst of a dramatic paradigm shift, a new populism that rejects the idea that a powerful elite knows what is better for societies than the people themselves. In this view, the new populism is not a return to the interwar variety but something much earlier.
What comes to mind in the American context is the movement by President Andrew Jackson in the 1830s. He stood against the National Bank, fought for the rights of the states against the federal government (except on the tariff), and generally sided with the people over elites. In other words, he embraced the original idea of democracy. If you want to understand what’s happening in the world today in light of American history, that’s a great place to begin.
