GAGOP Mourns Passing of Chevron Deference

In the latest episode of Peach Pundit the Podcast™ I went on a bit of a rant where I explained how the Georgia Supreme Court had ruled in our favor in killing Georgia’s version of Chevron Deference. I have had several folks ask me to turn that rant into a post, so this is that. It is largely a transcript, but I have cleaned it up a little and added some additional context. I remain dismayed at Chairman McKoon’s statement that overturning this case is setting a, “negative precedent,” abandoning a decades old conservative fight to get this exact result.

Let’s talk about what just happened at the Georgia Supreme Court because it’s kind of a big deal, especially if you’re into things like constitutional government, separation of powers, or, I don’t know… legislators actually making laws.

For decades now, Georgia has been living under this little legal gem called DOT v. Atlanta. It basically said, ‘Sure, the legislature can give a vague outline of an idea, and then the bureaucracy can go fill in the blanks however they want.’ Sound familiar? Yeah, it should; it was our version of Chevron deference, that beloved federal doctrine that let unelected regulators write half the laws we’re stuck living under. Except this was the Georgia Grown version.

But here’s the good news: we killed it.

In our case—yes, the one I’m personally named in—the Court finally said, ‘Wait a second… the Constitution says the legislative, executive, and judicial powers are supposed to be separate. Maybe we should try that!’ And with that, DOT v. Atlanta was tossed into the constitutional dumpster where it belongs.

The Court replaced it with a three-step framework that basically says:

1. Agencies don’t get to make up their own powers.
2. If the legislature didn’t say it clearly, you don’t get to pretend they did.
3. If the rule doesn’t fit what the statute actually allows, it’s gone.

I am over simplifying it a bit, but that is the gist.

The Court laid out a clear three-step test for future cases that says executive agencies like the State Election Board can’t just make stuff up. They have to actually be given that authority by the legislature. If that sounds like a basic idea to you, congratulations, you’re a conservative with a functioning brain stem.

But here’s where things get weird.

Guess who intervened as defendants in this case? My own party. Yep. The Georgia Republican Party under Josh McKoon’s leadership intervened to defend the State Election Board’s power to unilaterally write rules with vague authority and zero accountability. They hired lawyers to defend the Chevron Doctrine.

Here was Josh McKoon’s statement that we received from a friend:

Statement on GA Supreme Court Ruling Court upheld one rule, sent two back.

I am pleased the Georgia Supreme Court upheld the two rules the Georgia Republican Party originally submitted for consideration to the State Election Board in June of 2024. We are hopeful the nonsensical challenge to these common sense rules will be dropped immediately. As for the other rules, I am shocked and disappointed that the justices chose to reverse decades of precedent that will set a negative precedent and will impact Georgia government in areas beyond election integrity.

I look forward to working with the legislature to finish passage of HB 397, which will codify the rest of these common sense rules. We will lobby our Senators and Representatives to explicitly address S.E.B. rule making to prevent Radical Left Wing groups and their allies from constantly using lawfare to undermine our efforts to assure Georgians that our elections are fairly executed. Josh McKoon Chairman Georgia Republican Party

So let me get this straight: After four decades of fighting against unchecked agency power in Washington, suddenly the Georgia GOP wants to expand it in our own backyard? They want not just the State Election Board, but all unelected boards to operate with ambiguous, unmitigated authority, not tied to the law passed by the General Assembly?

That’s not conservative. That’s administrative tyranny with a red tie on it.

And now, McKoon is out here issuing press releases claiming this is somehow a ‘negative precedent’? Josh, buddy, the only negative precedent would’ve been letting your agency buddies keep writing rules like they’re legislators without having to answer to a single voter. That’s not how representative government works, at least not in a party that claims it still believes in limited government.

He also said he’s ‘pleased’ the Court upheld the two rules the GOP originally submitted. Nah. One of those rules was upheld. The other two? Sent back, because the Court couldn’t determine standing yet. Basically, James Hall is an election official and those two rules would have impacted him in that role, but not me as a voter. So those two rules still face litigation. But four of the seven rules? The most obnoxious ones? Dead. Because they were illegal. Because the SEB didn’t have the authority. Because… get this… the Constitution still matters.

So what is Josh’s solution to this problem? He wants to go talk to the legislature now. And that’s fine! That’s how law is supposed to be made. If you want to change the law, pass a bill. But don’t cry about ‘Radical Left Wing lawfare’ when conservatives like me who actually believe in limited government take the fight to court and beat your ass.

This ruling isn’t radical. It’s restorative. It restores the rule of law. It restores the proper balance of power. And it restores the basic principle that if you want to govern people, you need to be accountable to them.

So no, Josh, this isn’t a loss for election integrity. It’s a win for constitutional integrity. And as a conservative, I’ll take that every day of the week.

Georgia just made a bold stand for limited government. Too bad the state party didn’t stand with us.