California’s Regulatory Empire Is Unscathed by the Court’s Chevron Reversal
The state will continue to operate as an island in the land.
The Supreme Court’s 6–2 decision in Loper Bright Enterprises v. Raimondo, which ended the Chevron precedent, sparked something like hysterical vomiting among California reporters and columnists and progressive legal scholars. “An earthquake in U.S. law,” attorney Michael Wara, director of Stanford University’s Climate and Energy Policy Program, called it. In Loper, the Court “displayed an alarming willingness to dismiss scientific expertise out of hand, in favor of partisan or religious ideologies,” cried a predictably partisan Los Angeles Times business writer. The decision is “a big win for business,” bemoaned another L.A. Times business writer, who took care to note that the Court majority comprises “Republican appointees” who “fretted about the ‘administrative state.’”
But when their stomachs ceased to bubble and churn, when their eyes stopped watering, some espied a silver lining: Because the Court’s decision in Loper applies only to federal — not state — agencies, California’s own Ottoman regulatory state can maintain its nearly total sovereignty and operate as an island in the land. And lest you think yourself safe in the Midwest or the South, consider this: California is politically powerful on the national scene, and the state’s 200 rogue agencies will continue to shape policy all over America — and, by extension, all over the world.
Take, for instance, the Public Employee Relations Board, the agency charged with overseeing all matters involving the 2 million unionized state- and local-government employees in California. Each of PERB’s four board members was appointed by a Democratic governor — either Jerry Brown or Gavin Newsom — and each has been a member of (or a lawyer for) a government union. However legal under California law, that’s an obvious conflict of interest. It’s no surprise that PERB regularly adjudicates in favor of those very government unions, faithfully rendering decisions that expand their power over California’s government.
In one recent example, PERB voted twice to back striking unionized teaching assistants — despite the fact that their walkout, as University of California officials told the PERB trustees, not only violated the union’s no-strike contract but was quite clearly causing “irreparable harm” to students heading into finals and graduation. PERB said there was no evidence of harm and accepted the union’s argument: that because some union members were arrested while participating in pro-Hamas campus riots, the strike was really about the free-speech rights of government employees and could therefore continue. Entire campuses closed. Finals were postponed, graduation ceremonies were at risk of cancellation. The campus violence continued until a state judge ended the racket. Enraged by that decision, progressive lawyers and the media roundly denounced the judge as (the horror!) a conservative.
Similarly, state- and local-government agencies have moved to crush “parent notification” policies in schools — which would require simply that parents be notified, just as they are about field trips and sporting events, if their boy (for instance) asks to use the girls’ bathroom and wants his pronouns to be “she” and “her.” Summoned by the California Teachers Association, state attorney general Rob Bonta quickly sued school districts, claiming, “Disclosing that a student is transgender without the student’s permission . . . may violate the student’s right to privacy.” That’s my emphasis because that word suggests that Bonta knows there is no such privacy law, state or federal; indeed, countless state and federal laws embedded in ancient practice prove the opposite. In the absence of constitutional law, there is only arbitrary regulatory state power. There are already mechanisms in place to protect children whose parents are violent — and teachers are legally required to report those parents. But parental violence against children is thankfully so rare and so taboo that it makes headlines. Ironically, there is evidence that the sorts of sex scandals that rocked the Catholic Church in recent years occur regularly in California public schools and reveal that education-union leaders and their members ignored or actively participated in cover-ups.
For his part, preoccupied with carrying the luggage of the teachers’ unions that finance his political campaigns, Bonta failed to notice events that unfolded over the course of a decade in his own hometown. In June, the FBI raided the homes and businesses of a major Bonta donor in Alameda County. The man at the center of that scandal, waste-management exec Andy Duong, is a self-described “family friend” of the attorney general’s (no matter what Bonta says now). Photos discovered in the FBI raids reportedly reveal that Bonta and his wife, Oakland assemblywoman Mia Bonta, partied with Duong and went to NBA games, rolled in limousines, and traveled to the Philippines with him. The FBI says Duong’s businesses are connected to drug-running and sex-trafficking. Bonta, apparently, couldn’t see the trouble through all the confetti — and the distracting work of targeting recalcitrant school boards. (Note: Bonta says he’s shocked and that he will return Duong’s contributions, by which he means that he’ll be giving the campaign cash to Planned Parenthood and the Brady Campaign — two organizations that endorsed him for AG. Does that make the money cleaner?)
The relationship between unions and California regulators extends further. Before being appointed, the members of the state’s powerful Bureau of Registered Nursing (BRN) are vetted by the California Nurses Association, the Service Employees International Union, and by state teachers’ unions eager to maintain their grip on nursing education. No wonder that BRN has waged a decade-long war against private nursing colleges.
After decades of failing to seduce fast-food workers into their “brotherhood,” meanwhile, the Service Employees International Union turned to its relationships with UCLA’s Labor Center and the California Labor Federation — the union hive mind — to persuade Sacramento lawmakers to impose a wage hike and establish a new agency, the Fast Food Council. In a censorship campaign that was extraordinary even for Newsom, the governor recently attacked media that have reported on the ensuing (and utterly predictable) layoffs, price hikes, and store closures.
It’s not just government unions that get special treatment. It’s anybody whose politics or financial interests match the flavor of the month in Sacramento. Take the California Public Utilities Commission, the agency behind the radical move to ban gas stoves and internal-combustion-engine vehicles — anything that burns fossil fuels — by 2035. That same agency manages in molecular detail the utility companies that deliver electricity to California homes and businesses. But because environmentalists at the PUC prize green-energy projects above an efficient electricity grid, the agency prohibits utilities from passing along to ratepayers the costs of upgrading their infrastructure — except at bankrupting cost. And when late-summer Santa Ana winds predictably snap ageing power lines and spark wildfires, Governor Newsom and the regulators blame the utilities — and, of course, capitalism. Demands to punish industry then follow as surely as autumn follows summer.
The governor regularly blames “Big Oil” for the high price of gasoline in California. But it’s his own California Air Resources Board that imposes the “clean-air” regulations and taxes that boost the cost of producing gasoline to the No. 1 highest in the country. And when oil companies try to produce more oil in California, they’re frustrated in that effort by another state agency, the California Geologic Energy Management Division. In 2019, Newsom fired the director of that agency because he insisted on approving legal applications to drill; when his replacement followed the same, lawful practice, Newsom fired him, too. Beheadings generally have a way of sharpening the mind: The agency’s latest director has reportedly canceled all those permits and gone on a climate-saving offensive — using tax dollars to plug wells. The result: Gasoline prices continue to rise, and Newsom has created a new agency to investigate the oil industry’s “price-gouging.”
The state Department of Fair Employment and Housing regularly sues California companies on frivolous complaints and then hires politically connected trial attorneys to pursue them. Even in progressive California courts, those lawsuits frequently fail, but not before the state and the companies have spent millions litigating them. Meanwhile, everyone complains about the cost of California housing; it’s the highest in the nation. But the Coastal Commission won’t allow local governments to build houses. That irony doesn’t stop the governor and progressive legislators from complaining that local governments won’t build more housing — and then suing them.
If you run a farm that your Central Valley family has owned for generations, you’ll need permission from regulators for virtually every activity. California’s Department of Food and Agriculture, the state Department of Pesticide Regulation, the Department of Water Resources, the Air Resources Board, and the Department of Fish and Wildlife will each have their say. And when the United Farm Workers union doesn’t like the results of a vote it calls in order to take control of your workers, it can count on the UFW-controlled California Agricultural Labor Relations Board to lock up the ballots and impose the UFW’s labor contract on you.
The administrative state is everywhere in California, and it’s smothering, totalizing. Never mind their initial panic over Loper. Sharp-eyed progressives already see the utopian possibility that California can act as a beachhead for a counterattack on the Constitution. UCLA environmental-law professor Julia Stein makes that case on the University of California’s Legal Planet blog, concluding that Loper “underscores the augmented role states, including California, will need to continue to play in fighting climate change.”
That sort of augmentation has national implications: Golden State regulators speak often and glowingly of their national leadership, of providing a model for other progressive state officials. In October 2022, for example, Newsom signed a pig’s trough of new laws to bolster the power of state agencies — a set of measures that (he said) represents the “most significant action on the climate crisis in California’s history and raises the bar for governments around the world.” California’s vehicle standards, for instance, are readily adopted in other states, often by legal statute. As Virginia just proved by ending that state’s suicide pact with California, these state relationships will now become the front lines in the emerging legal battle over what’s constitutional and what is regulatory authoritarianism.
Such an “augmented” role for the state in California will be enforced by a governor who brags openly that his model for good government is Culbert Olson, California’s 29th governor, a Marxist who believed in what he called “unitary action” of government — the 150-year-old progressive dream (descended from Hegel and then Marx) of a world in which regulators impose on us the most “scientific” ideas of the moment, no matter their constitutional implications, no matter that the so-called science may mask malignant political impulses. And then, of course, in this utopia, the struggle between Chevronistas and conservatives will melt away, Marx’s friend Engels promised, as the “interference of the state power in social relations becomes superfluous in one sphere after another, and then ceases of itself.” Eventually, “the government of persons is replaced by the administration of things and the direction of the processes of production.”
For Californians, and all Americans by consequence, this means that the administrators’ attacks upon our rights — the government-sanctioned regulatory beatings — will continue until morale improves.
This article originally appeared in National Review Online.
Will Swaim is president of the California Policy Center and co-host with David Bahnsen of National Review’s “Radio Free California” podcast.