“Eliminating Chevron Deference Will Enhance Stability in the Law and Favor the Citizenry.” So says the subheading for Part II of the amicus brief filed by Senator Ted Cruz (TX-R) along with other members of both houses of Congress in the Supreme Court of the United States (SCOTUS) case Loper Bright Enterprises v. Raimondo. Per that amicus brief, attached further below: “SUMMARY OF THE ARGUMENT The Court should unequivocally abandon the contemporary Chevron deference doctrine because it contradicts Articles I, II, and III of the Constitution.” The Manufactured Housing Association for Regulatory Reform (MHARR) advised manufactured housing industry professionals on May 2, 2023 that this pending Supreme Court case could yield positive news for manufactured housing industry professionals. “Agencies exploit general or broad terms in statutes to engage in policymaking functions of questionable legality with the assumption that courts will grant deference and not independently evaluate the lawfulness of those agency interpretations.” The lawmakers’ amicus brief states: “The “Founders expected that the Federal Government’s powers would remain separated—and the people’s liberty secure—only if the branches could check each other.” Baldwin v. United States, 140 S. Ct. 690, 691–92 (2020) (Thomas, J., dissenting from denial of certiorari). Therefore, “[t]he Constitution carefully imposes structural constraints on all three branches,” and “the exercise of power free of those accompanying restraints subverts the design of the Constitution’s ratifiers.” Id. at 691.”

 

Part I of this report will be the article courtesy of the Daily Signal to MHProNews on the Loper case, which explains the Chevron Deference principle that has guided courts for decades. If that precedent is struck down, as some court watchers think it might be, it could have far reaching and positive consequences for businesses in the U.S., and could then act as a curb against the administrative state in America.

Part II is additional information with more MHProNews Analysis and Commentary in Brief

Part III of this article will be our Daily Business News on MHProNews macro-market and manufactured housing connected stocks update for 7.31.2023.

Part I

LAWNEWS

Bureaucrats ‘Don’t Give a Damn’: Ted Cruz EVISCERATES Chevron Deference in New Supreme Court Filing

Tyler O’Neil / @Tyler2ONeil / July 27, 2023

Sen. Ted Cruz took aim Thursday at a Supreme Court precedent that empowers the administrative state at the expense of the people’s will and the Framers’ vision in the Constitution.

This Supreme Court doctrine has “played an enormous role in the expansion of the administrative state,” Cruz, a Texas Republican, told The Daily Signal in a phone interview Thursday. “It has resulted in the American people being subject to the tyranny of the bureaucracy, over which they have very little control or ability to demand accountability.”

Cruz referred to “Chevron deference,” the doctrine that whenever a law is ambiguous, a federal agency has the authority to interpret the scope and content of that ambiguity to achieve its ends, so long as the interpretation is “reasonable.” The doctrine dates back to the 1984 case Chevron v. National Resources Defense Council. Cruz led a group of 35 senators and representatives in supporting fishermen challenging a federal regulation in the upcoming Supreme Court case Loper Bright Enterprises v. Raimondo—a case in which the court will reconsider Chevron deference.

Under this doctrine, “the courts give an extraordinary amount of deference to agency interpretations of law, even when those agency interpretations are not mandated by the statue that Congress passed and the president signed,” Cruz explained.

The senator argued that Chevron deference insulates bureaucrats who make the rules and regulations Americans must live by — creating a perverse protection for people who make life worse for everyday citizens.

“Far too many of the bureaucrats, quite frankly, don’t give a damn about what the voters think,” Cruz said. “One of the reasons why you see so many policies that destroy jobs, that hurt people across the country coming from the unelected bureaucracy is precisely because elected officials don’t have to pay the price for those decisions.”

This protects elected officials because they can merely blame bureaucrats.

“Your jobs that these bureaucrats took away, gosh, don’t blame me because I’m not the one who did that,” Cruz said, paraphrasing an unscrupulous politician. “The framers rightly envisioned a constitutional structure where those creating legislative rules could be held to account by the voters.”

Cruz filed a brief arguing that Chevron deference undermines all three branches of government as laid out in Articles I, II, and III in the Constitution.

Chevron deference undermines Congress’ legislative power by allowing agencies to make their own rules and it undermines judicial review by weakening the courts’ ability to enforce the law.

Cruz told The Daily Signal that it undermines the presidential power to execute the laws as stipulated in Article II, as well.

“The president is a constitutional officer who is democratically accountable,” he noted. “Chevron has helped fuel the growth of the modern administrative state, and in many instances, the unelected bureaucrats are not only unresponsive to Congress, but they are unresponsive to the elected president and the political leadership.”

“We see frequently a disconnect between the bureaucracy that views itself as the permanent government and the elected leadership in Article II,” he noted, referring to what former President Donald Trump called “the Deep State.”

“The president should be able to execute the laws consistent with his or her policy priorities and not handcuffed by unelected bureaucrats who believe they don’t work for the president and they don’t work for anybody else, either,” Cruz argued.

The senator claimed that Loper Bright “provides an excellent vehicle to overturn Chevron.”

In Loper Bright, fishermen are challenging the National Marine Fisheries Service—represented by Commerce Secretary Gina Raimondo. Federal law forces fishermen to carry inspectors aboard their vessels. A new Fisheries Service rule forces the fishermen to pay the salaries of these federal inspectors. The federal law requiring the inspections does not stipulate that fishermen must pay inspectors’ salaries, but the Fisheries Service insists that it has the power to demand payment under Chevron.

A divided panel of the U.S. Court of Appeals for the District of Columbia Circuit sided with the Fisheries Service in August 2022, noting that the statute leaves “room for agency discretion.” Yet the Supreme Court granted a writ of certiorari.

“Here the federal government enforced regulations requiring a family fishing company not only to allow a fishing monitor on their ship but also forcing them to pay the salary of that monitor,” Cruz explained. “Those facts illustrate well how bureaucrats easily stray and routinely stray from the language and the actual policies enacted by Congress.”

“They almost always stray in a direction of increasing the burdens on the American people, making regulations more costly, more burdensome, more destructive to jobs and economic growth,” the senator added. He noted that multiple justices have said they would like to revisit the Chevron precedent.

Cruz filed his brief Thursday, and many other Republican senators joined. Kentucky’s Mitch McConnell, Tennessee’s Marsha Blackburn, North Carolina’s Ted Budd, Texas’ John Cornyn, Arkansas’ Tom Cotton, North Dakota’s Kevin Cramer, Montana’s Steve Daines, Iowa’s Joni Ernst and Chuck Grassley, Mississippi’s Cindy Hyde-Smith and Roger Wicker, Louisiana’s John Kennedy, Utah’s Mike Lee, Wyoming’s Cynthia Lummis, Missouri’s Eric Schmitt, Florida’s Rick Scott, and South Carolina’s Tim Scott signed on. Rep. Mike Johnson, R-La., led the effort in the House of Representatives.

Cruz noted that he filed amicus briefs in other key Supreme Court cases, such as Groff v. DeJoy, 303 Creative v. Elenis, and Students for Fair Admissions v. Harvard College.

“The Supreme Court agreed with the position advocated in my amicus briefs,” upholding “religious liberty, free speech, and equal protection rights” in those cases, he noted. ##

MHProNews Editor’s Note: The Amicus brief in LOPER BRIGHT ENTERPRISES, ET AL., Petitioners, v. GINA RAIMONDO, IN HER OFFICIAL CAPACITY AS SECRETARY OF COMMERCE, ET AL., is found at this link here.

 

Part II – Additional Information with More MHProNews Analysis and Commentary in Brief

Regular and detail minded MHProNews readers are well aware of examples of federal bureaucracies that have often acted in apparent contradiction with a law they are charged with enforcing.  So, it is little wonder that the Manufactured Housing Association for Regulatory Reform (MHARR) has made the argument that this challenge to the Chevron Deference standard could shake things up in a positive way if the Loper Supreme Court case is favorably resolved. Senator Cruz’s office has indicated that they have a strong track record in their amicus brief filings with SCOTUS.

 

Furthermore, MHProNews has periodically reminded readers of the apt principle explained by attorney Kurt Kelley. When the law is dependable, the climate for businesses – perhaps particularly smaller or newer businesses – is more favorable.

 

Unpacking MH Attorney Kurt Kelley’s ‘Predictability in Law is the Key to a Prosperous Republic.’ Is USA Democracy or Republic? Why it Matters to Businesses, Pros, Consumers, or any American

 

Leftists and deep pocketed billionaires – who are also often left-leaning – often don’t want that predictability in law; what they want are bureaucrats that essentially do their will. This isn’t a new development; it was arguably in evidence when famed economist and intellectual John Kenneth Galbraith made the observation quoted below.

 

 

MHProNews has also noted the so-called Iron Triangle, which in some ways is an extension of the principle Galbraith referred to in that memorable quotation.

 

 

 

 

While it is hardly definitive, an argument can be made that MHI is often an example of a principle pointed out by author Carol Roth. As Roth said, “big companies secretly love regulation because regulations are in fact anti-competitive — every new rule, law or compliance measure limits the ability of existing smaller competitors or new start ups to compete. While big businesses can use their caches of cash to fund new people and procedures to deal with regulation, for many small businesses, a new regulation can put them out of business.”

Businesses of all sizes, perhaps particularly smaller firms, often turn to a trade association for support and advocacy. MHI is supposed to be that trade group in the manufactured housing at the national level. MHI has deftly been posturing stances that often seem similar to what MHARR takes on behalf of independent producers of HUD Code manufactred homes.

But when carefully examined, MHI routinely is demonstrably posturing rather than actually seeking the proper implementation that the two national trade groups may address on topics like zoning, financing, or the DOE energy rule.

Such regulatory matters could be at greater play if the Chevron Deference is struck down by SCOTUS in the Loper Bright case. Thus, MHARR’s interest. Which begs the question, why is MHI publicly silent?

MHI has a political science Ph.D. as their CEO. Did the highly praised Dr. Lesli Gooch miss those classes on the federal bureaucracy during her university years?

MHI leaders arguably count on industry professionals simply trusting MHI, or MHI leaders wouldn’t make such obvious mistakes as the recent example spotlighted by MHProNews below.

 

You Can’t Make This Up – Lesli Gooch, Ph.D., Manufactured Housing Institute CEO Proclaims – ‘I Commend the Teams at FHFA, Fannie Mae, and Freddie Mac’ – Saturday Satire; plus MHVille Markets Update

 

If there is a silver lining to the current situation in America, where an apparently lawless and corrupt administration ignores the law or uses it as a weapon against their political enemies while often acting in ways that benefit insiders, it is that the importance of issues like this one can come into sharper focus.

Per Current Affairs: “In the land of bureaucracy the truth is meaningless and only technicalities matter, which means you’ve already made your first mistake.” – Lyta Gold

MHProNews has been bringing to readers attention both the view from inside of the administrative state (i.e.: the bureaucracy) plans for overhauling the federal system being advanced by items like Project 2025.

IDing Core Problems – Offering Fixes – ‘Project 2025-Mandate for Leadership’ – Concerns, Facts, Emerging Cures, Plans, and Analysis; plus MHVille Markets Update

When someone thinks about the so-called “Deep State” – wittingly or not – they are talking about an aspect of the administrative state (i.e.: the bureaucracy).  Per Oxford Languages, the Deep State is: “a body of people, typically influential members of government agencies or the military, believed to be involved in the secret manipulation or control of government policy.” Which again, leads thoughtful individuals to recognize the need for a reform agenda like Project 2025. But it also leads thinkers to a need to challenge several of the aspects of how the bureaucracy operates, and thus this Loper Bright challenge to the Chevron Deference in the U.S. Supreme Court.

The Heritage Foundation has an article by Professor John Adams Wettergreen with this Abstract: “Conservatives have often charged that the great centralizing tendencies in American government were a product of the New Deal. As the late Dr. Wettergreen shows in this essay, first published in 1988 as a chapter in The Imperial Congress, a book produced by The Heritage Foundation and the Claremont Institute, the true culprit was not FDR but LBJ, as the full bureaucratization of American government did not take place until the 1960s. Dr. Wettergreen makes a further useful distinction, grounded in the writings of Alexis de Tocqueville and Max Weber, between “governance” and “administration.” In Dr. Wettergreen’s view, the centralization of governance is justified, but the centralization of administration is terribly threatening to the liberties of Americans. Although the statistics in this essay are mostly outdated, his analysis and argument are still relevant and persuasive.”  

That lengthy essay begins in part as follows.  Note how these tendencies described in 1988 still apply today?

Conservative Americans, almost as commonly as those on the left, are inclined to believe that bureaucracy is a necessity of modern government. According to this conventional wisdom, the bureaucratization of America has been going on—inevitably—for over a century. This conviction is decidedly pessimistic: after all, “bureaucracy” is a pejorative term. No matter how much we might try to use it with a neutral sense, its connotations of vapid formality, mindless routinization, and obtuse impersonality shine through. Even the greatest defender of bureaucracy, Max Weber, confessed that this form of rule is inhuman. In considering bureaucratization, then, we must ask whether modern government can be good government. Nevertheless, American government today is more highly bureaucratized than ever before, and it is likely to become more so. American government today, due to this, is not good government.

…

Today, however, we have a government skilled in obfuscation. Elected officials are so intent upon avoiding responsibility that even the “regular Statement and Account of the Receipts and Expenditures of all public Money,” which the Constitution directs to “be published from time to time,” is a multi-volume monster—one so huge that it requires yet another volume to interpret it authoritatively. Representatives and senators freely admit that they do not know what was in the 1987 Omnibus Continuing Resolution. Our office holders are so far from accomplishing grand objectives that America cannot even protect its borders from drug runners, much less seal them against migrant workers or other foreign elements. … If this catalog of governmental ills does not fit the political taste of all educated people, it could be amended to satisfy almost everyone, for almost all people today understand that our country is not well governed. For example, James L. Sundquist of the left-liberal Brookings Institution has been maintaining since 1980 that American government is “incompetent.”[1]

Of course, not all would agree with the thesis of this essay: that the most serious ills of American government are due to bureaucratization; to what political scientists call “centralization of administration.” Beyond that, and contrary to what is ordinarily supposed, centralization of administration in the United States is not a century-old, inevitable trend, but a creature of the choices made well within living memory. It is important to understand, in other words, that the “Great Society” of Lyndon Johnson is the true father of our present troubles, far more than is the New Deal of Franklin Roosevelt. This point is important, not because Johnson is more easily despised than Roosevelt, but because it correctly explains what is the root of bureaucracy in America.”

Professor Wettergreen is correct, “not all would agree with the thesis of” his essay. Be it FDR, LBJ, or Woodrow Wilson, etc. as the ‘culprit’ behind the modern bureaucratic state, the effects that we are living is still the same. That’s not to say that the history of how we got here isn’t important, it is.  By grasping that the bureaucracy has long failed to properly serve the American people, and has become arguably oppressive and is manipulated by special interests, it is become more clear to people on the left and right that it is often the source of problems rather than solutions. Thus, candidates in both major parties – Democrats and Republicans – are proposing solutions to the issue of a bureaucratic state that favors a powerful minority over the majority under the small “r” republican and constitutional principle of the rule of law.

MHProNews will continue to monitor and report as deemed warranted on developments in this SCOTUS case, and others that may prove to be of interest to manufactured housing. Stay tuned. ##

Andrew Justus, J.D., Niskanen Center Housing Policy Analyst, Hill Op-Ed Asks and Answers – ‘What’s Holding Back Manufactured Homes?’ Sunday Weekly MHVille Headlines in Review

Cavco CEO William “Bill” Boor for MHI to Congress-ESG ‘Distorts Market’ v Roxanne Bland-Martin Lavin – ‘Follow the Money’ ‘Pay More Attention to What People Do Than to What They Say’–Facts-Analysis

What are CBDCs? The Buzz and Controversy Over CBDCs – What MHVille Pros Should Know – Facts, Various Viewpoints, Survey Results, and Analysis

 

Part III. Daily Business News on MHProNews Markets and Headline News Segment

 

Headlines from left-of-center CNN Business – from the evening of 7.31.2023

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• Coinbase CEO says complying with SEC request would have been the ‘end of the crypto industry in the US’
• AMC has best week in ticket sales led by Barbie and Oppenheimer box office wins
• 99-year-old trucking company Yellow shuts down, putting 30,000 out of work
• Juul seeks authorization on a new vape it says can verify a user’s age. Here’s how it works
• World Cup helped Qatar Airways score a $1.2 billion profit
• America’s oldest craft brewer has shut down after 127 years. Here’s how it could be saved
• Middle-income Americans think prosperity is within reach
• ‘Barbenheimer’ box office success has reawakened America’s moviegoing muscle
• Adidas signs $1.2 billion partnership with Manchester United
• Twitter threatens to sue hate-speech watchdog group
• The UK will drill for more oil and gas in the North Sea
• A flashing ‘X’ was installed atop the San Francisco headquarters following Twitter’s rebrand. A city complaint says the sign went up without a permit
• Europe’s economy is growing again as inflation continues to fall
• Heineken’s profit hit by drop in beer sales in Asia
• China tries to boost consumer spending as factory sector contracts for fourth month
• Elon Musk reactivates Kanye West’s Twitter account following X rebrand
• Illegal child labor is on the rise in a tight job market
• Social media: What the platforms are for and how they work
• The case for a soft landing is slowly but surely building
• Temperatures reached record highs this week. Here’s why you still need a sweater in the office
• ‘Barbenheimer’ had incredible box office momentum in its first week
• Uber self-driving car test driver pleads guilty to endangerment in pedestrian death case
• Trader Joe’s recalls broccoli cheddar soup and falafel amid concerns over insects and rocks

 

Notice: the graphic below can be expanded to a larger size.

Headlines from right-of-center Newsmax 7.31.2023

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