Many will remember how conservatives criticized the bureaucratic state for fulfilling their duties by making essential policy and enforcement decisions to implement laws passed by Congress. In the Chevron case, SCOTUS ruled that it wasn’t up to agency bureaucrats to set such policies but rather that Congress or the courts should do so. I disagreed with that ruling because in my 20+ years’ experience in state government I found that most experts in government agencies are just that – experts. Many hold degrees in their specialties and/or have worked for decades in those private sector industries that they later drafted policy for and helped regulate.
Conservatives and others argued that unelected officials shouldn’t be making decisions about how to interpret laws. That argument resulted in SCOTUS’ ruling that if Congress passed something with unclear language, it was up to the courts to clarify their intent. So now we’re expecting judges to have expertise and rule on topics they will often know little about. Seems like a better alternative might have been to instead hold Congress accountable for clarifying their policy and enforcement intents with the laws they pass. But the conservative movement considers the Chevron ruling a victory and the Republican led Congress has become peculiarly complacent about allowing their role in our tripartite system of governance to be assumed by non-lawmakers.
Question to all those who believe Chevron was the right decision: how ya feeling now about an unelected billionaire with glaring conflicts of interest making governance decisions in an effort to transform our government into, who knows what? Perhaps conservatives are rationalizing this inconsistency by contending that Musk is only doing what Trump has tasked him with. After all, the President himself said that Musk had his backing and that where they disagreed Trump would have the final call. But wasn’t it this same delegation of authority that was at play between former presidents and the appointed officials in governmental agencies, pre-Chevron ruling? The hypocrisy of a party that previously railed against unelected bureaucrats running the government now going silent while a billionaire unelected bureaucrat (remember, he’s a government employee now) runs our government into the ground is maddening.
And speaking of unauthorized folks mucking around in places they shouldn’t, how about that Gen Z Geek Squad of Musk’s that’s hacking their way into governmental payment systems that we all depend on? Are we ok with that? I can tell you that I for sure am not. While their hacking efforts have been put on hold for now, it doesn’t make the development any less troubling. I worked in IT for decades, starting off as a programmer and I’m very familiar with the complexity of governmental systems, many of which are legacy programs kept running via a patchwork of coding changes that have been implemented over decades.
Given my background in this area, I’m only too familiar with the law of unintended consequences that looms large whenever coding changes are made. Because of this, in the shops that I worked in, we were diligent in ensuring that the old software version was backed up and ready to be brought back online should something go wrong with any modifications we made. This diligence was hard learned through experience. We knew that breaking a system would put our coworkers and those who count on it into a precarious position, and ourselves on the hot seat for getting it back up and running asap. Even for something as seemingly inane as a permitting system, we could not downplay outages or the criticality of getting them back up quickly. And God help you if, like me, you worked for law firms and a system went down. When the folks whose work pays your salary are unable to access critical documents in an industry where they bill in 6-minute increments, there’s nothing more important than getting them back up and productive again.
So given that, I can’t help but wonder if these script kitties that Musk has unleashed on complex legacy systems are following industry standards for such work. Hell, we don’t even know why they’re getting in there, let alone:
whether they’re making changes to systems and, if so, backing up source code and data prior to doing so,
how they’re handling access to sensitive information w/in the systems, including vetting who should be able to see it,
whether they’re documenting changes they’re making,
whether they’re seeking approval for any changes from a change management panel consisting of system experts and cyber security professionals,
and whether they understand current disaster recovery plans and/or have instituted new ones to ensure they would be able to recover a crashed system if the need should arise.
Think it doesn’t matter? I wonder what folks, especially Trump voters, will think if a system they depend on, Social Security or Medicare for instance, is impacted and the check or service they were expecting is delayed indefinitely while a bunch of Gen Z hackers work through the night to undo the damage they’ve done. I wonder if they’ll still think then that it’s worth doing whatever it takes to make America great again.
I agreed with the Court revisiting Chevron, for one reason. Taking Chevron into account, Administrations on both sides had learned to appoint ideologues to the decision-making positions in the regulatory agencies. Yes, most of the underlings are still professionals, way more knowledgeable than most in Congress. But the top tier set the policy, the courts deferred under Chevron, and we had the yo-yo problem, with dueling regulations taking the place of Congressional compromises setting policy. That's not how I read Article One.
Viewed that way, Musk's overreaches are indicative of the problem, but hardly supportive of Chevron. Musk was never elected to anything, and it is not for him to set policy. Confined to efficiency matters, a private sector perspective has value. But gutting whole departments isn't about efficiency, it's about policy. Fortunately, I think the courts will have plenty to say about this overreach, in part because they are no longer hamstrung by Chevron.