Agency Ontogeny of Phylogeny

Deference

Agency Ontogeny of Phylogeny

Administrative Substates

By Stephen L. Wilmeth

            It was quickly apparent a scheduling glitch had been made.

            The scene was the dentist’s office and the conflict was the popular 7:00 AM slot with Sara, the former horse gal from Clovis now dental hygienist extraordinaire. Marshal and I stood there watching the staff behind the counter jumping through hoops working it out.

            While the verdict was being weighed, the young man from NMDA who will no doubt someday be yet another capable Secretary of Agriculture for the State of New Mexico and I discussed the ongoing matter of writing comments to the BLM on changes mandated for their grazing guidelines. These, of course, are the nearly 30,000 prescribed words of grazing detail that no Texian or Floridian cowman can even comprehend much less have to follow.

            If it was forced on them, you could just see their responses! In what is becoming a normal world practice, they’d go retrieve their surgical masks and wear them while the details were discussed hoping desperately that they wouldn’t catch the scourge embedded in the depths of the words.

            We don’t want that nonsense they would shout out.

            But we have no choice. The rule book is the grazing bible we must follow in a bifurcated industry whereby one set of producers must operate with one set of conditional standards while the rest of the industry doesn’t even know there is a separate, substandard rule of applied law.

            Marshal’s point was correct, though. Federal lands ranchers have an opportunity to address some relief in the process so we will write our comments all-the-while attempting to compete in an unbalanced marketplace. That’s the deference isn’t it?

            That’s not a misspelling, either. It is the norm of expanding discovery.

            Deference

            Americans haven’t realized it yet, but there are deferences scattered everywhere.

            The first and most well-known deference is the Chevron Deference which was the ruling whereby courts were required to accept the interpretations of statutes that federal agencies create. No, it isn’t Congress that writes the law of eventuality that emanates from the growing litany of congressional acts. It comes from the writing of regulatory interpretation of legislation by the agencies.

It is law.

The courts have declared it to be. Broad powers are implicit in the interpretations. In biological science the analogy would be termed Ontogeny of Phylogeny, and in the growth of government’s fourth estate, the independent agencies, the dynamic is parallel. The ontogeny is the growth and development of the agency and the phylogeny is the evolutionary history of the created organism. In practice, evolutionary history of the agency demonstrates it will grow to fill a specialty niche. The discovered niche is filled with gusto, and it is defended to the death.

This secured and independent state of agencies isn’t a temporal or conditional state of existence, either. As recently as February 24, the Supreme Court announced it would not hear a case challenging the rule that allows unelected bureaucrats to rewrite decisions of federal courts. Clearly, federal agencies are openly allowed to issue their own interpretations that have the effect of overruling legal precedents with little or no oversight.

These agencies have long been independent, unelected police states. They have staked out their own territories and subregions in broad expanses within the territorial boundaries of this nation.

Administrative Substates

There is reason to support the concept this state of authority expanded exponentially in the ‘50s and ‘60s when the first of the big housing projects were created. The general idea was government and private industry could unite to create great things. Landscape scale ideas blossomed, and the foundations were poured by targeting classrooms, cities, and entire country sides. Most, if not all of the schemes, were proven to not just be unpopular but wildly unsuccessful.

Earlier examples, like the Tennessee Valley Authority (TVA), were not even confined to a single state. They have morphed out of complete watersheds, biological preserves, and the unequal states of the West. To govern the monstrosities and new administrative territories, government created commissions, new authorities, and institutions. In the process, people’s lives were and are changed and disrupted. Even Congress is finding they are competing with a growing external authority they cannot suppress or control. Regional economies were and are being reinvented, and completely new ruling bodies have become the enforcement forces.

Societal disruption is everywhere, and there has not been a single popular vote across the fruited plain electing the new ruling masters.

With hindsight, military reservations, reservations, national forests, parks, monuments, and wildlife refuges are distinct and similar territorial subsets of regional disruption of the unelected, ruling phenomenon. Further, sub-substates within those substates are expanding right in front of our eyes. Designated wilderness, Areas of Critical Environmental Concern (ACECs), wild and scenic rivers, and the newly minted migration corridor overlays are expanding the regional territorial rewrites.

 From the Goldwater Institute, Timothy Sandefur writes that in the Supreme Court decision to decline to consider the above noted case, Justice Clarence Thomas took the unusual step of writing a separate opinion whereby he admitted he’d made a mistake in the original case granting wide privileges to the agencies to interpret law and or override judicial precedent and giving them the power to essentially change law at will.

Regrettably, (this) has taken this Court to the precipice of administrative absolutism, he wrote. Under its rule of deference, agencies are free to invent new (purported) interpretations of statutes and then require courts to reject their own prior interpretations … (this) poignantly lays bare the flaws of our entire executive deference jurisprudence.

Nice words, or too little too late?

It certainly doesn’t do much for the West that has seen property rights trampled to the point of collapse, and … it does nothing to suggest change is in the wind.

Stephen L. Wilmeth is a rancher from southern New Mexico. “I took the 7:00 from Sara … Thanks, Marshal. Your time is coming.”