Let’s get philosophical for a moment. If you’ve been on this blue marble of ours for any significant length of time you probably would agree that reality can often be quite different than theory.
Most of us have been taught that the Constitution of the United States divides the federal government into the legislative, executive and judicial branches to prevent one branch from becoming too powerful and to create a system of checks and balances.
President Abraham Lincoln in his Nov. 19, 1863, Gettysburg Address affirmed a democratic model of government: “… that this nation, under God, shall have a new birth of freedom — and that government of the people, by the people, for the people, shall not perish from the earth.”
A traditional theory of democracy not only recognizes the worth and dignity of all people, but it also affirms majority rule without violating the rights of minorities and promotes a willingness to compromise, to find middle ground.
That’s democratic theory. But the reality is that it would not be a stretch to suggest the founding fathers would not recognize what passes for democracy in 2023. The founders wished to avoid usurpation of power by a single individual or group, or the circumvention of law by rulers for their own benefit.
And yet right now, the U.S. Supreme Court is intent on handcuffing the executive branch’s ability to write rules and regulation.
In West Virginia v. EPA the Supremes created a new but largely undefined doctrine that courts all over the country can use to overturn or halt federal rulemaking. Writing for the majority Chief Justice John G. Roberts Jr. writes:
“Agencies have only those powers given to them by Congress, and ‘enabling legislation’ is generally not an ‘open book to which the agency (may) add pages and change the plot line.’ We presume that ‘Congress intends to make major policy decisions itself, not leave those decisions to agencies.’ Thus, in certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us ‘reluctant to read into ambiguous statutory text’ the delegation claimed to be lurking there. To convince us otherwise, something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to ‘clear congressional authorization’ for the power it claims.”
Nowhere in his majority opinion does Roberts define what constitutes extraordinary claims.
So let me. It’s whatever any particular judge feels it is. For good measure, Roberts says courts need to be “skeptical” when the executive branch doesn’t specifically adhere to the letter of congressional law.
The kicker to this judicial overreach is that the Supreme Court ruled against the EPA’s Clean Power Plan that was never executed. No one was subject to the plan’s terms. It can be fairly argued the Supreme Court should have never taken up the case.
But not satisfied with its newly minted major questions doctrine, the court has now decided to take up a longstanding legal doctrine that came out of Chevron v. NRDC.
In its 1984 majority opinion, Justice John Paul Stevens wrote:
“If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.
“Judges are not experts in the field, and are not part of either political branch of the Government. Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges’ personal policy preferences. In contrast, an agency to which Congress has delegated policy-making responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration’s views of wise policy to inform its judgments.”
Under the Chevron deference, if statutory language is ambiguous or unclear courts must defer to an agency’s reasonable interpretation of the statute.
Next term the Supreme Court will revisit Chevron in Loper Bright Enterprises v. Raimondo. In the case, a group of New Jersey herring fishers say they are unfairly being required by the National Marine Fisheries Service to pay the salaries of federal inspections on board their boats.
In its amicus brief, petitioners argue that the NMFS seized on silence and ambiguity in the Magnuson-Stevens Act to require Atlantic herring fisheries to pay observer salaries. Petitioners say the District of Columbia Court of Appeals wrongly applied Chevron in determining the NMFS interpretation of the MSA as reasonable.
The D.C. Circuit found Congress never explicitly authorized Atlantic herring fisheries to pay federal observers, acknowledged a reluctance to apply Chevron and applied it anyway.
Plaintiffs also argue the Chevron deference violates the principle of separation of powers, and violates the Administrative Procedure Act.
Truth be told, the Supreme Court in recent years has often ignored Chevron, relegating it to the back burner or off the stove completely in analysis of executive-branch regulations. But it’s not unreasonable to conclude that the Supreme Court wants courts to decide how federal agencies go about their day-to-day business whenever Congressional law is ambiguous — full stop.
Of course this is utter nonsense. In crafting laws, Congress is often intentionally vague to allow federal agency experts to find the best course of action.
Judges by definition are supposed to be impartial. But the judicial appointment process has become tremendously partisan in recent years. West Virginia v. EPA gives judges new power to personally decide their own partisan preferred reasonable interpretation of legislative rules.
Make no mistake about it. Overturning Chevron will give the courts additional power over federal agencies.
Yes, Congress can try to respond by writing airtight unambiguous legislation. But even then, as learned in Sackett v. EPA, the Supreme Court is more than willing to ignore the explicit intent of Congressional law.
Somewhere James Madison, Alexander Hamilton and John Jay must be weeping.
