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“The U.S. Supreme Court [last] Wednesday appeared divided over a bid to further limit the regulatory powers of federal agencies in a dispute involving a government-run program to monitor for overfishing of herring off New England's coast… [Two fishing] companies have asked the court, with its 6-3 conservative majority, to rein in or overturn a precedent established in 1984 that calls for judges to defer to federal agency interpretation of U.S. laws deemed to be ambiguous.” Reuters
“The doctrine at the center of the case is known as the Chevron doctrine. It is named after the Supreme Court’s 1984 opinion in Chevron v. Natural Resources Defense Council, upholding a regulation issued by the Environmental Protection Agency. Justice John Paul Stevens set out a two-part test for courts to review an agency’s interpretation of a statute it administers. The court must first determine whether Congress has directly addressed the question at the center of the case. If it has not, the court must uphold the agency’s interpretation of the statute as long as it is reasonable.” SCOTUSblog
The left urges the Court to uphold Chevron, arguing that agencies have expertise that Congressional staff and judges lack.
“The executive branch of government, whatever may be said about it, has a lot of people who make decent salaries who are capable of close analysis of a wide range of problems. Congressional staffs are smaller, make less money, and are burdened with constituent service and district work. They are generally not capable of writing detailed rules…
“When Democrats put the Inflation Reduction Act together, for example, they didn’t specify exactly how hydrogen tax credits would work or whether federal subsidies should apply to leased Korean electric vehicles. Instead, they kicked these questions over to the executive branch.”
Matthew Yglesias, Bloomberg
“Agencies, not courts, are policy experts. Their job is to protect the air we breathe, the food we eat, and the medicines we take, all of which require expert knowledge of the kind possessed by regulators — and lacked by judges. Deferring to the agencies’ reasonable statutory interpretation allows the system to work properly. Handing interpretation of complex, ambiguous regulatory statutes to judges is a great way to mess things up and make us less safe.”
Noah Feldman, Bloomberg
“Overturning the well-established Chevron framework would invite litigation over virtually every decision, big and small, that agencies must make in their day-to-day work, decisions that are in part legal but also call for expert policy judgments. Questions such as how to define a stationary source of air pollution, what constitutes critical habitat for endangered species, which drugs are safe and effective for human use and what amounts to unfair or deceptive marketing.”
Jody Freeman and Andrew Mergen, New York Times
“According to Gallup, 44 percent believe government does too much to regulate business and industry; 31 percent believe government does the right amount; and 25 percent believe government does too little. That’s a pro-regulatory majority, with 56 percent saying government should regulate at least as much as it does now…
“Bureaucrats are often called unaccountable, but in fact their actions are accountable to the public in the sense that the agency chiefs and presidents they work for must answer for their decisions. Federal judges, on the other hand, are appointed for life and can do whatever they want.”
Timothy Noah, New Republic
“Initially praised by Justice Antonin Scalia, Chevron was a unanimous ruling to uphold a Reagan administration air pollution regulation that environmentalists considered too lax. During a long run of presidencies that, apart from Jimmy Carter’s four years, spanned the late 1960s to the early 1990s, Republicans controlled the White House and the agencies to which judges were deferring. The distribution of power has shifted since then…
“Republicans can [now] count on a conservative supermajority on the Supreme Court. Meanwhile, Democrats are winning more presidential elections, and their appointees have used executive powers to issue ambitious rules… These political developments, as much as high-minded constitutional principle, explain conservatives’ objections to the doctrine.”
Editorial Board, Washington Post
The right urges the Court to overturn Chevron, arguing that Congress, not agencies, should determine policies.
The right urges the Court to overturn Chevron, arguing that Congress, not agencies, should determine policies.
“Agencies regulate some of the most complex businesses and industries in the United States. They possess a level of expertise that’s clearly beyond the capabilities of Congress. Why not defer to their determinations? Isn’t that simply wise? But what might be wise in specific, highly technical circumstances can be very problematic when adopted as a general rule…
“Three consecutive administrations — Obama, Trump and Biden — have attempted radically different immigration reforms through executive action rather than through legislation. We’ve also seen the Obama, Trump and Biden administrations enact or propose divergent rules and regulations on sex discrimination under Title IX. We’ve witnessed President Biden attempt to forgive student loans and mandate workplace vaccinations through executive action…
“The same law shouldn’t mean wildly different things based on the whim of a president… The question isn’t how much power the government should possess, but rather who should possess it. And it’s far from clear to me that it’s inherently ‘conservative’ or ‘Republican’ to say that Congress, the most democratic branch of government, should possess more power than the president.”
David French, New York Times
“Our system of checks and balances assumes that, when the two houses of Congress and the president cannot agree, nothing will happen. Then, in turn, when nothing happens, either gridlock will bring all sides to the bargaining table, or power to deal with the issue will remain with the states, or with the people. Allowing agencies to step in when the law falls silent short-circuits that process…
“As [the fishermen’s lawyer Paul] Clement noted, using the example of the Securities and Exchange Commission claiming authority over cryptocurrency regulation, that produces more gridlock rather than less: Why should Congress do the hard and sometimes unpopular work of legislating when agency heads claim that old, vague language gives them all the power they need? Presidents are not kings; they rule under laws written by Congress. The same is true of agencies, whether or not they are under direct presidential control.”
The Editors, National Review
“Two realities have changed since 1984 that have proven Chevron to be unworkable. First, Congress has largely stopped legislating. When it comes to big topics such as energy, the environment, and immigration, Congress is no longer making the big decisions that are necessary. Presidents from both parties have since stepped in and abused executive power to advance policy priorities that should have been advanced through Congress. Chevron has been a major enabler of this abuse…
“Relatedly, as presidents have become more comfortable using executive power to further policy goals, federal law has become less, not more predictable. If executive branch agencies have the power to rewrite regulations completely every time the White House switches parties, then federal policy in any one policy area is only as stable as the current party’s hold on the White House…
“Federal bureaucrats should have only as much power as Congress explicitly granted them by statute.”
Editorial Board, Washington Examiner
