When Bureaucrats Veto the President

Washington is hotly debating whether President Trump’s wall-building falls within the powers that Congress has delegated to him. But the bureaucracy has been eroding the president’s executive power with much less fanfare. Deference to the “experts” in the “non-partisan” civil service has weakened the principle that government officials who are not accountable to the voters require oversight by those who are. Bureaucrats are now thought to deserve their own independent power base, and the president’s rejection of their expertise can be ruled illegal.
...The difference is that elected officials must face the voters, while bureaucrats do not. No system is perfect, but at least the voters can “throw the bums out” when power rests with those who must stand for election. To elevate the civil service to a fourth branch of government, independent of elected officials and answerable to no one, is to eliminate democratic accountability.
...In other cases, however, judges have invoked the authority of bureaucrats to overrule the president. Take Trump’s executive order that disqualified some transgender people from military service. In halting the order (later reinstated by the Supreme Court), a federal judge declared that Trump’s justifications were “contradicted by the studies, conclusions and judgment of the military itself.” The judge inferred that Trump must therefore be motivated by illegal “animus” toward transgender people.
Now, perhaps the military’s studies are rigorous and not motivated at all by political correctness. Perhaps Trump’s new policy is indeed unjustifiable. Nevertheless, the danger here is obvious: The military has effectively vetoed an order by the commander-in-chief. If the military brass is owed such deference, it is easy to see how it could head off interference from the civilian leadership simply by producing a study that confirms its own beliefs.
A similar case occurred when Trump’s secretary of commerce, Wilbur Ross, attempted to add a citizenship question to the 2020 Census. As part of a sprawling ruling invalidating the new question, a federal judge cited the concerns of “experts at the Census Bureau” to bolster his conclusion that Ross was “unwilling or unable to rationally consider counterarguments to his plan.” Maybe the Census Bureau is exactly right. Alternatively, critics suspect that the bureau exaggerated the problems with the citizenship question in order to overrule a Trump-administration priority. Certainly the temptation would be there, given the power with which judges have imbued the career officials. That temptation should concern everyone, regardless of how one feels about the policy change in question...MORE

 Those of us in the West have been putting up with this "deference" to federal land management agencies for decades. It is called the Chevron deference and refers back to the case CHEVRON U.S. A. v. NATURAL RES. DEF. COUNCIL(1984)

In short, "Deference, or judicial deference, is a principle of judicial review in which a federal court yields to an agency's interpretation of a statute or regulation." See a more precise analysis of the Chevron deference and its impact by going here.

The key, of course, is Congress. Whenever they pass a statute where certain sections are "ambiguous" or "unclear", the courts defer to the opinion of the federal agency. Now think of all the bills you've read about where Congress passed bills without even reading them. Remember Pelosi's famous quote about having to pass a bill "to find out what's in it."

A recent example is the 640-page S. 47, The Natural Resources Management Act. Congress threw together over 100 bills that will impact millions of acres in the West. Some of the bills only had one hearing and had never passed the House or the Senate. Do you suppose somewhere in those 640 pages there is language that is "ambiguous" or "unclear"? You can bet your boots there is, and in each such case Congress and the Courts have delegated lawmaking authority to career bureaucrats.

Let's take a look at the grazing language in the Wilderness designations:

 GRAZING.—Grazing of livestock in the wilderness areas, where established before the date of enactment of this Act, shall be administered in accordance with—

What exactly does "where established" mean? Does that refer to the entire allotment? To only those areas in the allotment where grazing was occurring "before the date of enactment"? If a pasture was being rested before enactment, can livestock be moved back into that pasture after enactment? What impact does "where established" have on numbers of livestock, i.e., can permitted numbers be increased in a Wilderness Area under this language? 

Congress has not provided a clear enunciation of  what "where established" means, which of course means it is unclear and the Courts will defer to the agencies' interpretation.

I have selected 24 words out of a bill containing over 105,000 words. You have to wonder how many instances of this are in this huge bill?