It’s a mixed up muddled up shook up world
Lola – The Kinks 1970
A once respected Supreme Court will decide next month if the Equal Employment Opportunity Commission (EEOC) can force businesses to allow trannies to cross-dress in their places of employment.1 On the surface, the issue is straightforward. Does Title VII of the Civil Rights Act of 1964 empower the EEOC to force a funeral home to allow its employees to dress according to their perceived gender? In 2018, a three-judge Sixth Circuit panel held that discrimination on the basis of transgender status is “necessarily” discrimination on the basis of sex and is therefore prohibited.2 Well, there you go.
We constitutionalists shake our heads at this dangerous silliness. We wonder whatever happened to Article I lawmaking, freedom of association, religious freedom, and just the plain liberty of an employer to set conditions of employment? If Scotus is uncomfortable deciding EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., (Harris) it has only itself to blame, which Justice Clarence Thomas foretold in 2016. Then, he lambasted his colleagues for choosing “to sit idly by” while bureaucrats were allowed to set the scope of their own regulatory powers free from any meaningful judicial review by the federal courts.3
Harris presents an opportunity for Scotus to begin the restoration of Congressional lawmaking. Judicial deference, subservience to agency interpretations where the enabling law is “silent or ambiguous” gathered steam in a 1984 case, Chevron USA v. Natural Resources Defense Council. Thanks to Chevron, Scotus accepts agency regulations as long as they are “based on a permissible construction of the statute,” which in practice means Scotus permits nearly all agency machinations, distortions and lawmaking.
The idea behind judicial deference is that unelected judges should be reluctant to overturn legislation passed by democratically accountable lawmakers on the grounds that such legislation (in theory) reflects the will of the majority. In the upside-down world of social justice, Scotus accommodates purposely vague Congressional laws, laws that lawmakers can plausibly point to near election time and plead that it isn’t their fault their constituents are getting screwed; it is those darn agencies headed by the President.
Yet, judges do not defer to democratically accountable lawmakers. They defer to true believers, the secular crusaders hell-bent on molding society to their vision of environmental, educational, financial, etc. perfection. Article I delegation promotes, they say, administrative convenience and efficiency. Instead, it effectively deputizes tens of thousands of bureaucrats to ‘go forth and legislate’ in open violation of separation of powers.
But the central falsehood of Chevron is the assumption that bureaucrats are not political operatives, but are instead technical experts who offer neutral expertise above the fray, the give and take of party loyalty and special interests. If anything, government by experts is worse than government by elected officials. They have no better sense of the public good. Their specialized expertise is too narrow for the balanced judgements that intelligent policy requires.
Administrative rule making is no less a struggle for political power than congressional legislation. It allows special interests to focus their efforts in an arena far and away from prying public eyes and elections. If Congress wants technical advice, it can buy it without assigning its lawmaking powers granted by We the People in Article I. Delegation is a political narcotic, a single finger signal of disrespect. It hooks Congress on ever more grandiose schemes and insulates its members from political repercussions.
If the EEOC thinks the Civil Rights Act should encompass on-the-job cross-dressing, it should present its case to Congress. Imagine the floor debate spectacle! Scotus shouldn’t pass up the opportunity in Harris. Begin the renewal of congressional lawmaking. Strike down Chevron.
General Reference: Mellor, R. A. (2008). The Dirty Dozen – How Supreme Court Cases Radically Expanded Government and Eroded Freedom. New York: Penguin Group (USA) Inc. 67-88.