The separation of powers is a fundamental concept of the American Constitution. In the Founders’ scheme, Congress, the courts, and the executive branch are independent branches of government, with their own roles and duties, designed to check each other.
But since 1984, the Supreme Court has hampered its ability to act independently before the executive branch. In Chevron USA, Inc. v. Natural Resources Defense Councilthe high court adopted a general presumption of deference to statutory interpretations advanced by regulatory agencies in any case where the statute was ambiguous, so long as the interpretation was reasonable.
If there is ambiguity about what the text of a law says, the Supreme Court ruled in that case, then the courts should defer to the government’s experts. This became known as the Chevron deference.
In practice, the Chevron deference undermined the Court’s independence, as it forced courts to simply accept the executive branch’s interpretations in many difficult cases.
The doctrine also creates perverse incentives for the other two branches. For example, by giving deference to agencies in ambiguous cases, it incentivized executive branch regulators to seek ambiguity in order to expand their power. This has led to decades of executive overreach, as administrations have used convoluted readings of statutes to pursue agendas that Congress never imagined.
For the same reason, Chevron deference shifted the burden of enacting well-written, well-thought-out laws away from Congress. Empowering regulators meant that, at the margins, Congress had less reason to write clear, consensus-based legislation.
The result, over more than 40 years, has been a departure from the intended constitutional order, in which Congress writes the laws, the executive branch implements them, and courts rule independently on disputed issues. Today we live in an often dysfunctional system where Congress is less likely to compromise and legislate on difficult issues, regulators are more likely to take matters into their own hands, and courts have less power to inform executive branch officials when they have gone too far .
The system lends itself to politicized regulatory pingpong, as courts are generally required to defer to the differing and even dramatically opposing interpretations advanced by changing Democratic and Republican administrations.
That was at stake in January, when the Supreme Court heard oral arguments challenging the legacy of Chevron on trial. In Loper Bright Enterprises vs. Raimondoa group of New Jersey herring fishermen opposed a federal rule that required them not only to host government observers on their boats, but also to pay the cost of those observers, about $700 a day.
This requirement was based on the Magnuson-Stevens Act (MSA) of 2007, which requires certain types of fishing operations to host and pay government observers. But in this case the fishermen were not explicitly covered by that requirement, so when the National Oceanic and Atmospheric Administration (NOAA) decided to expand the scope of the MSA to cover a budget deficit, the fishermen went to court.
The fishermen’s cause is important in itself. But for broader constitutional purposes, it’s something of a red herring. The details of their complaint are less important than whether or not the courts had to defer to NOAA’s forced new interpretation of the MSA.
In oral arguments, the three Democratic-nominated justices appeared likely to retain Chevron as it is, and all three suggest that experts at regulatory agencies are better equipped than courts to make difficult decisions on difficult-to-analyze statutes.
But the rest of the Court seemed skeptical. Justice Neil Gorsuch noted this Chevron deference tends to empower agencies at the expense of less powerful individuals, such as immigrants, veterans, and Social Security claimants. Addressing the Court, Paul Clement, who defended the fishermen, expressed himself thus: “One of the many problems with the Chevron The rule is that essentially it says that when the statutory issue is close, the tie goes to the government.”
Outside the court, news outlets and activists warned of the consequences of removal Chevron, pointing out that much of the federal government’s vast regulatory authority rested on its rule of deference. As a United States today The report on the case noted, “The court’s decision could undo decades of rules and procedures involving land use, the stock market and workplace safety.”
Brilliant runner It wasn’t the only Supreme Court case to call into question much of the government’s regulatory authority this term. Sheetz v. El Dorado County targets regulatory revenues, e Securities and Exchange Commission v. Jarkesy revolves around the question of whether the government violates Seventh Amendment requirements on jury trials when adjudicating securities claims. Collectively, Cameron Bonnell wrote THE Georgetown Environmental Law Reviewthese cases “indicate the Court’s desire to continue to define the appropriate scope of government regulatory authority.”
For too long, the administrative state has dominated much of American life unchecked. That may finally come to an end with this year’s Supreme Court term. When discussing problems with Chevron with NPR, Clement said, “I think it’s really as simple as this, which is: When the statute is ambiguous and the tie has to go to someone, we think the tie should go to the citizen and not the government.” One can hope.
This article originally appeared in print under the headline “SCOTUS Faces Federal Regulators.”