The ‘Always Done It This Way’ Defense: Why Government Agencies Can't Just Coast on Autopilot

July 24, 2024

When a government agency defends its actions by saying, “But we’ve always done it this way,” it’s worth taking a closer look. This argument is a common theme in the government’s response to legal challenges against agency actions. However, it doesn’t hold as much legal weight as one might think. Longevity and repetition alone don’t make government action legal or constitutional.

In the world of statutory interpretation, the actual text of the law takes precedence over how long an agency has been interpreting it in a certain way. The Supreme Court has made it clear that “entrenched executive errors” don’t get a free pass from judicial review simply because they’ve been ongoing for years. Rapanos v. United States, 547 U.S. 715, 752 (2006). In fact, the Court once remarked that “flipping coins to determine [agency actions] would remain as arbitrary on the thousandth try as on the first.” Judulang v. Holder, 565 U.S. 42, 61 (2011). This colorful analogy drives home the point: doing something wrong repeatedly doesn’t make it right – it just means it’s been done consistently wrong for a long time.

When it comes to individual rights, like privacy or free speech, the stakes are even higher. Our constitutional protections are designed to safeguard these rights, regardless of how long they’ve been violated. As Justice Story put it, we can’t let “illegitimate and unconstitutional practices get their first footing … by silent approaches and slight deviations.” It’s like letting termites into your house – ignore them long enough, and the whole structure could be compromised.

Now, there are some cases where courts do consider historical practice, particularly in disputes between different branches of government. There’s a legal concept called “constitutional liquidation,” based on James Madison’s idea that the meaning of unclear constitutional provisions could be “liquidated and ascertained” through a series of deliberate actions and discussions by the government. However, this doesn’t apply to cases involving individual rights or clear violations of statutory text. Chief Justice Roberts made this clear in his majority opinion in SEC v. Jarkesy, noting that “Practice may be probative when it reflects the settled institutional understandings of the branches. That case is far weaker when the rights of individuals are directly at stake.”

The bottom line is that the legality of a government program should be judged based on what the law actually says and whether the program respects our constitutional rights – not just on how long it’s been around. The death of the Chevron doctrine has liberated courts to make independent judgements about the law, further defeating administrative reliance on tradition. While historical practice can sometimes be a factor, it shouldn’t be used to override clear legal text or fundamental liberties. This principle applies to all government actions. It’s a reminder that in a democracy, the rules matter more than the routines.

So next time you hear “we’ve always done it this way” as a justification for an administrative program or action, remember that’s not how the rule of law is supposed to work in America. It’s always fair to ask whether long-standing practices actually align with the law and our rights as citizens. After all, just because something’s been on autopilot doesn’t mean it’s flying in the right direction.