Repealing American Archaeology

The Chevron Doctrine

On laws and regulations

Most people don’t like to think about laws, satisfied that their intuitive sense of right and wrong will keep them out of jail. That’s why we make jokes about lawyers being awful people, because you must be a true sociopath to choose a life of statutes. Well I’m no lawyer (disclaimer) but I have to think about law alot and, full disclosure, I don’t hate it. I’m especially fond of (complaining about) Federal law, which is what I’ll be doing here.

When the Federal government decides they need to tinker in our lives a bit more to get things just right, they often don’t go to Congress and ask them to make a new law. Rather, they turn to the Code of Federal Regulations (CFR). The CFR is now over 200,000 pages organized into 50 thematic “Titles” like Energy, Highways, Indians, Public Health, and every libertarian’s favorite Alcohol, Tobacco Products, and Firearms. Within each Title, there are long lists of regulations dictating to the American public the proper and legal way to behave.

The Code of Federal Regulations’ most famous moment. President Donald Trump standing in front of a stack of paper purportedly representing the entirety of the Code of Federal Regulations, promising to cut the red tape.

The CFR’s are written by employees of the 15 Departments of the government’s executive branch, the one supervised by the President. When the legislative branch passes a law, they often mandate that an executive Agency write regulations to implement it. These are the ‘nuts and bolts’ that translate a law from legislative abstraction to tangible reality. Those regulations must be accurate reflections of a law’s intent, so they can’t extend a law’s authority to do things like impose punishment if the law itself did not allow it. That being said, the regulations enumerated in the CFR’s are effectively Federal laws, they just don’t call them that. You can be fined and imprisoned for violating CFR’s.

This convention, which allows unelected bureaucrats to write Federal law, has been called the Chevron deference (or doctrine) since a 1984 Supreme Court case between Chevron oil and the Natural Resources Defense Council. Like most Supreme Court cases, the proximate issue was about some nerdy nuance of air pollution permitting, but its larger implications were actually the issue on trial. When Federal regulations are challenged, to whom should decisions be deferred? The regulatory Agency? Or the courts? Chevron established that regulatory Agencies have the final say in most cases on how to implement Federal law, thus serving in over 80,000 legal arguments since.

Despite its decades-long dominance as a legal doctrine, Chevron is now under fire from the Supreme Court and looking like it might be repealed. It’s hard to overstate how big a deal that is, effectively shifting an enormous amount of power from the executive to judicial and legislative branches of government. It’s relevant here because most American archaeology is conducted under CFR’s derived from several Federal laws, so repeal would undoubtedly have impacts on our field. Here, I’d like to weigh Chevron’s pros and cons and speculate how it might impact American archaeology.

Who pays the hall monitor?

The current challenge to Chevron was introduced by commercial herring fishermen in a case called Loper Bright V. Raimondo. Bright is a fisherman out of Cape May, NJ and Raimondo is Biden’s Secretery of Commerce. A companion case, Relentless V. Department of Commerce, is also implicated.

Raimondo V. Bright

Here’s what I gather from my foray into Federal fisheries management law. The Magnuson Stevenson Fishery Conservation and Management Act of 1976 (M-S for short) protected the long-term sustainability of US marine fisheries. Part of that Act required the National Marine Fisheries Service (NMFS) to draft regulations that implement the law. These regulation were assigned to Title 50 (wildlife and fisheries) Chapter 2. 50 CFR 260 details protocols for vessel inspections, one of which requires that NMFS inspectors be present on fishing vessels to ensure compliance with M-S. Further, it requires that fishermen pay their salary.

To bring in archaeology for a moment, this would be akin to the Department of the Interior requiring that their staff be present during all archaeological surveys and excavations. Not to help, but to sit in the corner and take notes about the legality of your performance while collecting a portion of your contract. Moreover, and I’m guessing here, but I strongly suspect that Federal inspectors are not the hardened shovel bums (or commercial fishermen) endemic to the profession. Rather, they are more likely overeducated and soft-handed, lending what has to be a hilarious class dynamic to New Jersey commercial fishing vessels. I can envision the scene now. An old Springsteen cassette blaring on deck from crackling speakers, the freshly-minted fisheries major from Rutgers being heckled as a four-eyed jerkoff for 12 hours a day.

But it’s those four-eyed jerkoffs that this lawsuit is all about. Loper Bright thinks that the Department of Commerce overstepped their legal authority when they interpreted M-S to require paid inspectors on all fishing vessels. So they sued, and now some enterprising lawyer made the case that this isn’t just about herring profits. It’s about how far, exactly, can executive agencies extend their authority over the law.

Federal Administrators: Pros or Cons?

There’s good arguments for keeping Chevron around. Firstly, the Federal government hires people like geologists, archaeologists, hydrologists, foresters, physicists, and yes, fisheries biologists for a reason. They are experts whose job it is to educate themselves about the most important issues in their respective fields. And alot of them do a good job of it. It was Federal experts, for instance, that put men on the moon. Judges and legislators, although (sometimes) intelligent, cannot realistically acquire the expertise necessary to evaluate the merits of nuanced regulations in each field. Thus, what is the purpose of maintaining a skilled Federal workforce if not to lean on them for regulatory guidance?

Further, repealing Chevron would be a massive power shift from the executive to judicial branch of government, effectively making the Supreme Court the ‘kings and queens’ of the executive agencies. There is a decent argument that this shift would be less democratic than present. Presidents and their cabinet members who supervise the executive agencies come and go with each election. Judges are for life.

And lastly, having Chevron in place is certainly a more efficient means of rule making that subjecting every decision to a disfunctional legislature and a cumbersome judiciary. The executive agencies can kind of just…do it. It’s unclear what would happen should Chevron be repealed. Will District courts throughout the US be clogged with challenges to Federal regulations? Like 20,000 times over? It’s possible. And if executive agencies need to make minor tweaks to regulations, like replacing a name or correcting a typo, would that require congressional approval? Also possible.

Despite the headaches, there are also great reasons to repeal Chevron. For starters, Chevron’s central assumption that Federal agencies are staffed with highly qualified experts is, in my experience, less true each year. This is partially because the Federal government no longer pays as well as the private sector for many jobs, so companies outcompete the government for the most highly skilled work force in the country. I don’t think the best cyber security experts in the Nation are working for the Department of Labor when they could be clearing 7 figures at Google.

But the brain drain is also because the government has a tendency to foist problem staff out of their jobs and into positions of even greater influence. It is very hard to fire Federal employees, or at least harder than promoting them, so awarding incompetence with more money and power has become routine. This practice has led to what I can only describe as a systematic overrepresentation of insufferable morons at the highest levels of government, the levels where regulations tend to be written, while many of the government’s most talented and personable staff remain in stable, if lower impact careers in local offices.

Moreover, the people who write these regulations are certainly not “kings and queens” with the power of the Supreme Court, but they’re at least something akin to provincial overlords. Or as the Feds call them: “National Program Managers.” In theory, these personnel cycle in and out with each Administration, but in practice this is rarely true. Rather, they get shuffled around between Offices and Agencies, making decisions that have an enormous impact on American life with minimal transparency or accountability. This might theoretically be a more democratic process than the judiciary, but at least judges are required to make their decisions through a well-reasoned, transparent process. The identities of those who write Federal regulations are rarely disclosed. How they determine which regulations to write might as well be locked up with the nucler codes.

Finally, Chevron might make rule making more efficient, but it makes rule following far less so. For every rule changed or written, the thousands (sometimes millions) of Americans whose lives it impacts must adjust accordingly. Many times, it’s no big deal. Other times, those regulatory changes force Americans to make huge changes to their lives and/or businesses, adjusting budgets, workflows, or procedures that had been in place for years. Those impacts are greatest among America’s “little guys,” small businesses and private individuals without the resources to hire lawyers to negotiate the regulatory changes on their behalf. Thus, repealing Chevron would almost certainly create a more equitable regulatory environment.

Chevron and American archaeology

It’s no guarantee that overturning Chevron would change anything in American archaeology, but it’s worth considering the possibilities. There are alot of Federal laws that regulate historic preservation in the United States, but there are 3 that matter most: the National Historic Preservation Act (NHPA), the Archaeological Resources Protection Act (ARPA), and the Native American Graves Protection and Repatriation Act (NAGPRA). As you might have assumed, each is accompanied by lengthy CFR’s that dictate the terms of their implementation, CFR’s that most working archaeologists know very well.

The NHPA

The NHPA is a great piece of legislation that goes well beyond archaeology to recognize that:

the historical and cultural foundations of the Nation should be preserved as a living part of our community life and development in order to give a sense of orientation to the American people.

Beautiful. Most of the cutesy “old towns” in communities throughout America are present today because the NHPA provided the legislative framework to incentivize their preservation. Remember that next time you get that warm, fuzzy feeling buying an $80 cutting board made of locally sourced timber from that artisinal kitchen wares boutique in the restored feed store downtown.

Archaeology is a very minor component of the NHPA, present in the law primarily as a means of identifying “historic properties” worth saving. The relevant text is in Section 106 (now 306108), which is comprised of 1 paragraph containing 2 sentences that support an industry grossing around 1.5 billion dollar annually in the United States. Given its brevity, it’s worth reprinting here:

The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, shall take into account the effect of the undertaking on any historic property. The head of the Federal agency shall afford the Council a reasonable opportunity to comment with regard to the undertaking.

The real meat of implementation is fleshed out in the CFR’s (Title 34 Part 800) that take these two sentences and turn them into 16-pages called the Section 106 process. 34 CFR 800 takes archaeologists through consultation, determining the intensity of identification effort, identifying historic properties, evaluating effects, and developing ways to mitigate the destruction of cultural properties. Many archaeologists spend their entire careers immersed in the regulatory text, returning to it periodically with new eyes like an aging protestant to the Book of Proverbs.

I like Section 106. I think it’s saved alot of valuable history and it’s why most of my friends have jobs. But I must admit that there’s very little in the NHPA that justifies its existence, the key phrase being that agencies “shall take into account the effect of (undertakings) on any historic property.” The law doesn’t actually say you need to DO a damn thing about it, nor does it mandate that agencies be pro-active in their search for historic properties. Maybe you’re just supposed ask the Director of the National Park Service if they know of any old stuff in the project area and call it good. So if you put 34 CFR Part 800 on trial, I’m not sure a judge would decide it’s a good faith interpretation of the NHPA. And in a moment, a 1.5 billion dollar industry disappears.

ARPA

1979’s ARPA has a few more teeth than the NHPA. The law clocks in at around 10 pages, but its intent is simple: don’t remove or destroy archaeology from Federal and Tribal lands and get a permit if you do. ARPA provides the ability for the Federal government to impose fines and jail time for violations, and those provisions have been used to prosecute some of the more egregious violations of the law. Those prosecutions, though often controversial, have ensured that ARPA is taken seriously as a means of protecting heritage resources in the United States.

Well, mostly seriously. One weird aspect of ARPA that artifact collectors will talk to you about for hours on Facebook is the so-called “Carter exemption.” Legend has it that President Jimmy Carter, an avid arrowhead hunter, required ARPA to include an exemption for collecting surface arrowheads. I can imagine the scene. Congessional aids had worked for months tweaking the language of the bill and finally got a 10 minute meeting with the President to present the fruits of their labor. The Georgia peanut farmer with a pocket full of arrowheads mentions in an offhand comment that “gee golly fellas, this wouldn’t impact a simple arrowhead hunter like me would it?” So they hurriedly tacked on a couple of clauses to satisfy the boss, voted the bill through, and left us with a law containing inherent contradictions that has been making legal scholars out of artifact collectors for decades.

The Carter exemption aside, ARPA and its accompanying regulations (43 CFR Part 7) are far more straightforward than the NHPA. In my reading, the CFR’s that implement ARPA are a direct extension of their legislative intent that merely elaborate on its statutes. In them, we learn how to issue a permit, assign fines, what exactly archaeological resources are, and how to determine Tribal sacred sites, among other nuances. Should Chevron be repealed, I don’t think that ARPA would be impacted. That being said, ARPA does not require that we proactively seek out and document archaeology, so the impact to the profession would remain.

NAGPRA

Ah, NAGPRA. The law this newsletter won’t let go. To reiterate, NAGPRA protects Native American graves and cultural items and provides a mandate to repatriate those housed in American museums to Tribes and Native Hawaiian Organizations. Go back and read my previous newsletters for more details or read one of the many books on the matter.

I’ve beat around the bush regarding my opinions on NAGPRA in previous newsletters and I won’t explain them entirely here. Briefly, I think NAGPRA as written and passed by Congress is a decent law that both corrected a long legacy of injustice and acknowledged the scientific value of human remains. But its weakness was in its ambiguity. Terms like cultural items, cultural affiliation, and burial site are all rife with the potential for loose (and bordering on mis-) interpretation. Between 1990 and today, those tasked with implementing the law have leveraged that ambiguity extensively through a long series of regulatory changes.

The Department of the Interior (DOI) just approved a radically revised version of the regulations that implement NAGPRA (43 CFR Part 10), but it’s not the first time they’ve done this. By my count, 43 CFR Part 10 has been revised at least 12 times since 1992, often amounting to substantive changes to definitions and procedures. We should count on ‘updates’ and ‘revisions’ every 3 years or so. Those of us whose job it is to implement the latest whims of DOI administrators shouldn’t count on a given change to last too long before the political winds shift and the CFR’s get re-written again. That’s what happens when you write a vague law and then task Federal bureaucrats with implementing it.

I made my opinions on the latest changes to 43 CFR 10 well known through public comment, so I won’t repeat them here. It suffices to say that I think they have drifted far from NAGPRA’s Congressional intent in 1991. NAGPRA has always been criticized for being marginally constitutional. It leans heavily on religious concepts that some believe violate the establishment clause of the US Constitution (separation off church and state). The recent revisions to 43 CFR 10 take that trend one step further by formally privileging religion over science, a move with which I disagree, to put it mildly.

In my view, the most recent NAGPRA regulation revisions are a great example of why unelected Federal employees shouldn’t be trusted with writing Federal law. Those individuals are often too politicized, too short-sighted, and too ignorant of the issues to undertake the task responsibly. Should Chevron be rejected, I would hope that 43 CFR 10 and regulations like it would be among the first to be challenged, thereby reigning in the excessive power amassed by the executive branch through their manipulation of CFR’s.

A blessing and a curse

The Supreme Court heard arguments for Loper Bright on January 17th, 2024 and we are now awaiting their decision. Given this cases’s origins among conservative legal experts, it is widely assumed that the Court’s conservative majority will vote to repeal Chevron, or at least greatly diminish its legal precedent. Justices Barrett and Roberts seemed less enthusiastic to repeal Chevron during arguments, but it is unlikely both will side with the Court’s liberal judges to maintain the doctrine.

Liberal media outlets have touted this move as a conservative power grab from a Democratic administration, but that’s a crude analysis. Chevron is fundamentally about the allocation of power between the 3 branches of government, and there’s nothing inherently partisan about it. Although a repeal would sap the Biden administration of power today, it will do the same for Republican administrations in the future. I would imagine Slate.com’s tune might change should these changes have occurred during a Trump administration.

The impacts of this decision will likely be felt directly by American archaeologists, whose profession is heavily influenced by the Code of Federal Regulations. I’m very much a utilitarian in these matters, and my currency is historic preservation. Whatever decision provides the greatest net benefit to historic preservation is the decision I think is best. In this regard, I think repealing Chevron is about a wash.

On one hand, the entire for-profit archaeology industry in America has a decent chance of imploding should Chevron be repealed due to challenges to Section 106 regulations. This would likely result in a massive loss to historic preservation in the United States. On the other hand, recent NAGPRA regulatory changes threaten to eliminate large segments of extant archaeological collections from research and display on nebulous, faith-based reasoning, resulting in a catastrophic loss to cultural heritage in the other direction. Repealing Chevron could easily prevent this from happening by opening those regulations up to legal challenges.

On balance, and taking into consideration its impacts beyond archaeology, I support repealing Chevron, thought not enthusiastically. I think America’s executive branch has grown too powerful and should be reinged in, but that repeal will be a huge mess and potentially destroy America’s archaeological private sector. A blessing and curse.

Ultimately, I hope a repeal will inspire archaeologists to pay closer attention to the legislative foundations on which their 1.5 billion dollar industry depends. Worried archaeologists working under Republican administrations often cite repealing the NHPA as a primary concern, but in my view that concern is misguided. The NHPA has bipartisan support because Democrats love cutesy historic downtowns and Republicans love historical monuments to dead men. Archaeologists should be more concerned about the tenuous links between the NHPA and the regulations that implement it to create archaeology jobs. To archaeologists that began working in the last two or three decades, these regulations have seemed as ancient as the gospels, forgetting that at some point some bureaucrat just….made them up. If American archaeologists are serious about maintaining a viable future for their discipline, then they should probably start thinking about passing an actual law that mandates it.