Mises Wire

Julian Assange, the Chevron Doctrine, and the Case against Pessimism

Julian Assange free

Last week was an excellent week. On the night of Monday, June 24, news broke that Julian Assange had entered into a plea agreement with the United States government. Less than forty-eight hours later, after being in various forms of confinement for twelve years for publishing classified material the United States government didn’t want the public to know about, he landed in his home country of Australia as a free man.

After spending years working to get Assange extradited to the US to face charges that he violated the Espionage Act, the Department of Justice (DOJ) ran into a dilemma. The British High Court had ruled that they would send Assange to the US if Washington affirmed that he was entitled to the same free-speech protections as American citizens.

But US prosecutors were reluctant to do so. Not only had they built most of their entire case on the assumption that Assange did not have the right to free speech, but any conviction enshrining a foreigner’s free-speech rights would create a precedent that the US government was uncomfortable with.

So, the prosecutors said they were unwilling to make such a commitment. Out of concern that the British court would then drop the extradition case, along with anxiety within the Biden administration about the ongoing optics of prosecuting a man for journalism, the DOJ decided to work out the plea deal with Assange’s legal team. And, although he did have to plead guilty to one count of violating the Espionage Act, which is outrageous, the plea agreement has no impact on legal precedent.

That is a major loss for the American national security state who wanted Assange either in a cell for the rest of his life or dead to punish him for embarrassing them and to dissuade other journalists from trying anything similar.

Instead, Assange was able to go home, kiss his wife for the first time in five years, and hold his seven—and five-year-old sons for the first time ever.

More good news came on Friday when the Supreme Court overturned the Chevron doctrine. The ruling was a major blow to the administrative state and a significant victory for liberty.

To understand what the administrative state is and how the Chevron doctrine helped build it into the monstrosity we have today, we have to go back to its beginning. In the early 1880s, after a deranged man—who thought he deserved a job in James A. Garfield’s new administration because of his work on the campaign—shot and killed the president, Congress passed the Pendleton Act.

Before the act passed, when voters chose a new president, the new administration would appoint much of the staff of the various administrative agencies and bureaucracies that comprise the executive branch. The Pendleton Act, however, made it unlawful to fire or demote most of the employees who made up these agencies. The result was the class of unelected, unappointed bureaucrats who make up the permanent government or “deep state” that stays in power, regardless of who voters send to the White House.

This special class of bureaucrats grew more powerful over the next century, but the most consequential expansion of its power came in 1984. That year, in the case of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., the Supreme Court ruled that whenever a dispute arose between citizens and an executive agency because of ambiguous language in legislation relating to the agency’s function, the courts are to defer to the agency’s interpretation of the law.

Because politicians are more interested in passing legislation that sounds good to voters—like bills simply making the air clean or keeping Americans safe from terrorism—than in being precise, this Chevron doctrine essentially lets federal agencies interpret laws however they’d like. The courts have no choice but to accept the agency’s interpretation.

Under this Chevron precedent, the administrative state ballooned into what we have today. There are dozens of agencies staffed with over two million unelected bureaucrats who can almost never be fired by the president, intervening in all aspects of our lives—be that warping the economy to benefit themselves and their friends in industry, imposing draconian restrictions on our lives and bodies in the name of public health, or forcing us to fund overt and covert interventions abroad that often blow up in their faces and put Americans in danger—all with the legal equivalent of a blank check authorizing almost everything they want to do. But as of Friday, that blank check is no more.

Disputes over the authority of federal agencies must now be settled in court. In the short term, that could call into question the legality of much that the federal government currently does. In the longer term, this ruling will transfer power from unelected to elected government officials and force Congress to be very specific and transparent when drafting regulations. The reversal of the Chevron doctrine alone is not enough to roll back the entire administrative state and all the destruction it causes, which will continue as long as the millions of federal bureaucrats remain unfireable. Still, it is an uncharacteristically massive step in the right direction.

What’s so striking about this pair of “wins” is how out of reach they felt up until the last moment. A week and a half ago, without knowing the internal concerns leading the DOJ to seek a plea deal or how the public outrage over the case was affecting the Biden administration, it was easy to imagine Assange’s extradition process dragging on indefinitely. Or to picture him dying in a high-security communications management unit the US government still appeared intent on sending him to. Instead, he was hours away from being home in Australia with his family.

Similarly, even though we knew the Supreme Court was slated to publish its Chevron ruling sometime soon and that it had been issuing a number of surprisingly solid rulings, it was hard to imagine they would overturn a precedent this critical to the power of the federal bureaucracy. Because despite how they’re portrayed by progressives in the media, most Republicans and establishment conservatives in DC are terrible at rolling back government power.

They may talk a good game when campaigning. But, at best, they tend to slightly slow the rate at which new regulations and interventions are implemented. The Supreme Court, being made up of political appointees, is usually no better. But, sure enough, the court came through and issued one of the most consequential rulings for American liberty in its 235-year history.

It’s easy to feel pessimistic when reflecting on the scope of institutional and social changes needed to fix the many problems facing the American people. And when every day seems to bring news about how much worse all these problems are getting, it’s natural to assume we will never see the end of them.

But weeks like last week should remind us that that’s not true. Good things happen. And often it’s hard to see them coming. Some of liberty’s biggest triumphs—such as the thirteen colonies’ secession from the British Empire, western civilization’s abolition of slavery, and the peaceful dissolution of the Soviet Union—all seemed impossible until, suddenly, they were inevitable.

There is no way to know what or when the next big victory for human liberty will be. But it’s important to not let that uncertainty undermine the fight. Because, for all we know, that victory could be right around the corner.

Image Source: Wikileaks
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