Imagine if when the Supreme Court decided Brown v. Board of Education of Topeka, they drew a sharp line between public and private discrimination. Maybe in Katzenbach v. McClung they drew a bright line around the Commerce Clause and ruled that as long as you were not conducting business across state lines, the Civil Rights Act of 1964 did not apply to your business. In other words, what if the court said that the principles of discrimination and inclusion apply only to the government?

The answer is we would have a vastly different world. Just consider the Katzenbach case in which the court claimed that the restaurant in question was not doing business across state lines, but it was possible that it could one day buy product from a vendor in another state, so the Commerce Clause applied. If the court had ruled rationally, we would now have a world where private discrimination was still legal, just as long as you did it locally, not nationally.

Of course, if the court had drawn the line between private discrimination and public discrimination, most of our race troubles never would have manifested, because normal life would not contradict official morality. A colorblind state is well within the spirit and sensibility of the American people. The liberty to associate or disassociate with whom you choose, for any reason you choose, is also consistent with the history and sensibilities of the people.

That is not what happened, and we have suffered a half century of demographic collapse as a result of the court imposing a new moral framework. It is a good example of how even small changes in the law can lead to a revolution in how people interact with each other and the government. We may be seeing another revolution brewing with the most recent court rulings in Loper Bright Enterprises v. Raimondo and Corner Post, Inc. v. Board of Governors.

The Loper decision ends what has been called the “Chevron deference” which is the longstanding principle where the courts defer to federal agencies with regards to regulations, interpretation of regulations and enforcement of regulations. Put simply, if a business or industry did not like a federal regulation, they had to convince the regulators to change it or get help from Congress. The courts would defer to the alleged experts in the administrative state.

What the Supreme Court has done in these two cases is continue to dismantle the logic that animated the Chevron deference and much of administrative law. They are going about it in two ways. One is the Court is saying that these agencies only have powers explicitly granted to them by Congress. Second, companies and industries can now go into the courts for redress. They can challenge the expertise of the regulators and the process used by the agencies to make policy.

This may sound arcane and boring, but keep in mind that most of the federal rules that directly impact your life are not passed by Congress. In fact, no one in Congress can tell you how most of the rules come into existence. The reason for that is the federal agencies craft the rules that regulate every nook and cranny of life. Until now, they did so without having to answer to anyone. Technically, Congress oversees these agencies, but Congress is full of simpletons.

What the Court seems to imagine is a new paradigm. If the Gaia worshippers, for example, want to ban gas stoves, they will need to get enough votes in Congress for a ban on gas stoves. Currently, they just have to cajole or bribe people in the administrative state and convince industry that they can profit from the new shenanigans in order to ban your gas stove. You, the citizen, have nowhere to turn to get your gas stove back.

There are now over 200,000 pages in the Code of Federal Regulations and few people have the slightest idea what they mean. This is why large companies have lawyers who interface with the agencies overseeing their industry. It is why small and midsized companies have trade groups. It is why there is a large army of lawyers whose specialty is administrative law. This is because the leviathan, which is the administrative state, has tentacles reaching into your most private matters.

What made this all possible was the habit of Congress, going back to FDR, to grant agencies in the executive branch broad powers to make laws, interpret those laws and enforce those laws. The way they did this is to give an agency a mission and then a budget to set off on that mission, which was used to lobby Congress for more money to expand the scope of the mission and underwrite various schemes that allegedly were in pursuit of their mission.

The direction of the Court is to ignore the vague powers granted by Congress and focus only on the specific powers granted by Congress. If Congress passes the Puppies and Rainbows bill that authorizes the Department of Education to do what they can to promote puppies and rainbows, the Court will not intervene. Once the DoE makes a rule requiring puppies and rainbows in the schools, then a school system can go to court arguing that the DoE was never granted this power.

There is a long road to go and many more court cases to define this new paradigm, but the end of that road is an administrative state that is limited by the specific powers granted to it and one that must defend its rules in court when challenged. For the same reason our coins have ridges, bills coming out of Congress will have to come with specifics, rather than pages of esoteric language designed to give the administrative state unlimited power to craft new rules.

In the short term, it means that every comma in those 200,000 pages of Federal regulations is now open to challenge in the courts. Inevitably, some popular rules will be struck down and that means Congress will be forced to pass actual laws reestablishing those popular rules. On the other hand, it also means there is a chance to get rid of odious rules that serve narrow interests. Getting a light bulb ban through Congress, for example, never would have happened.

It is not all puppies and rainbows. Rich people have been bribing Congress for generations and America presently has the worst class of rich people since the French Revolution, so it means lots of terrible laws from Congress. The difference is that this stuff will be out in the open where now it is in the shadows, allowing both Congress and its wealthy owners to play dumb and pretend to be something other than odious carbuncles strip-mining the middle-class.

Civil rights looked like a small change in private behavior in pursuit of a greater good, but it led to the demographic madness of the present. These rulings in pursuit of reducing the managerial state to mere bureaucracy may not look like much, but they threaten the moral authority of managerialism. Rule by experts no longer make sense when experts can be challenged. This may one day give people room to salvage whatever is left of the American experiment.

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