The Supreme Court will be hearing a couple of cases soon that have the potential of undermining something called "Chevron deference." This does not mean we are supposed to pay special attention to Chevron Oil. It refers to a 1984 Supreme Court case that says courts should allow federal agencies to make any reasonable interpretation of a law if the law is ambiguous. The word reasonable is key here. Agencies aren't allowed to do literally anything they want. They are merely allowed to choose among competing reasonable interpretations based on their experience and expertise.
Getting rid of Chevron has been a white whale of the conservative movement for years. But even the Wall Street Journal editorial page can muster only tepid arguments for overturning it:
Chevron arose when judges were willy-nilly substituting their policy preferences for those of the elected branch. But the doctrine has no constitutional basis.... The late Justice Antonin Scalia supported Chevron after he joined the Court, but he later expressed misgivings as judges bowed to regulators even when they were stretching or rewriting the law.... Overturning Chevron is an important act of judicial housecleaning that would rein in the administrative state and encourage Congress to write clear laws.
The truth, of course, is that overturning Chevron wouldn't rein in the "administrative state." It would simply give more power to judges. Back in 1984 when judges were viewed as too liberal and Ronald Reagan was president, conservatives preferred the administrative state. Today, with a more conservative judiciary, they prefer taking their chances in court.
What's really behind this, of course, is not any real concern with federal agencies per se, or with Congress writing clearer laws. It's the long evolution of the conservative movement against expertise of all stripes. The original justification for Chevron was the simple and obvious observation that modern life is complicated, and in cases of ambiguity it was better to leave things to subject matter experts rather than judges with no relevant knowledge. That's still the case, but movement conservatism has turned so hard to the right that it simply doesn't want to bend to reality anymore. It wants what it wants, full stop. From climate change to environmental rules to labor law to reproductive rights, it knows perfectly well that it can get its way only by a wholesale denial of reality. Nerdy bureaucratic scientists will never go along with that, but judges might. So Chevron has to go.
In THEORY, I think there is some merit to the argument that congress should pass laws, update laws etc that address specific issues. In practice, congress is incapable of passing or updating laws.
Given the aforementioned dynamic, Agencies, the Courts, Executive Action etc substitutes for congressional action. I believe Agencies generally are more knowledgeable than, say, a judge.
The one challenge I will raise, Agencies still need guidance: what is an acceptable level of X bad chemical? Without guidance, rules can be uneconomic or impractical: wise economic tradeoffs need to be made.
Before someone says why have tradeoffs, think of it this way, we could reduce highway deaths materially by lowing the national speed limit, to say ten miles per hour....
"The one challenge I will raise, Agencies still need guidance: what is an acceptable level of X bad chemical? Without guidance, rules can be uneconomic or impractical: wise economic tradeoffs need to be made."
FYI, federal agencies are generally charged through statute to promulgate regulations, and those statutes generally contain the parameters by which the rule is to be crafted. So your comment is well-taken, but has been addressed for decades.
For example, the Clean Air Act charges EPA with setting ambient air quality standards for a handful of listed air pollutants (ozone, particulates, lead, etc.) at a level "requisite to protect the public health" with "an adequate margin of safety." See 42 U.S.C. § 7409(b)(1). What exactly is "requisite to protect the public health" and an "adequate margin of safety" gets hashed out in the rulemaking process, whereby the agency has to propose a standard, take public comment on it, and then address those comments as part of the record justifying the ultimate decision.
Under Chevron, a court might be called upon to review a new air quality standard, and that review might hinge on, say, whether or not the administrative record supports the rule as regards EPA's interpretation of the statury "margin of safety" language. The court could conclude that the term is ambiguous, but then, under _Chevron_, as long as EPA's interpretation is reasonable (and the reasonability analysis involves in part checking to see whether or not EPA's interpretation of the language has changed opportunistically over time), and otherwise supported by the record, it should uphold the air quality standard.
So, let's say EPA proposed a new standard of 7 units of lead as the threshold for human safety. In so doing, EPA consulted thousands of public health science studies, and found that most studies conclude that exposure at or below 7 units of lead is safe, but at 8 units and above, human health is harmed, with one or two studies concluding that exposure as low as 6 units can be dangerous. EPA takes thousands of pages of comment on its proposal, receiving comments from industry claiming that 9 units is safe, and enviros claiming that 7 is dangerous. EPA addresses those comments in 500 pages of responses to comments, and in the final rule sets the standard at 6.5 units of lead. EPA acknowledges in the 200 page preamble to the rule that most of the data says that 7 would be safe, but determined in its expertise that 0.5 is a reasonable margin of safety.
Under Chevron, in a challenge to the standard, the court would say "well, it's not entirely clear what Congress meant by 'margin of safety,' but there's nothing here saying that 0.5 units is unreasonable, so we'll defer to EPA and its thousands of pages of analysis." If Chevron is overturned, the judge could say "Congress was unclear as to what 'margin of safety' means precisely, and I think, based on the two briefs I read from opposing sides and my dim memories of taking chemistry in high school forty years ago, 5 units is the right margin" and then that would be the law.
aldoushickman - you state "FYI, federal agencies are generally charged through statute to promulgate regulations, and those statutes generally contain the parameters by which the rule is to be crafted. So your comment is well-taken, but has been addressed for decades."
I believe a central issue in the Loper Bright (I case before the Supreme Court that impacts Chevron) is IF the term carry, entitles the Agency to force a fishman to pay the salary of the regulator on their boat.
So that statue, in my reading, does not contain the parameters by which rules can be crafted.
"in my reading"
Ok then.
Here's the deal with Chevron analysis: the court is supposed to ask two questions. First, is the statute on its face ambiguous? If not, the plain language of the statute controls (so, for example, if the statute said the agency shall promulgate a rule setting the deadline for tax filings on the last "Monday of the quarter" and the agency did a rule setting the deadline as the 30th of the month, the court would probably vacate the rule on on Chevron step one: the statute--arguably--is not open to more than one clear meaning, and the agency interpretation is incompatible).
Second, if the statute _is_ ambiguous, the court is supposed to then determine whether or not the agency* interpretation is "reasonable," i.e., if it's a plausible interpretation, even if it's just one among many, and (critically!) even if it's one the judges themselves would not select. If it is reasonable, the court is supposed to uphold it. It's a principle of judicial deference.
The issue with Loper Bright isn't that it's some weird situation where Chevron yeilds an illogical result or where Chevron isn't applicable at all. It's that this particular Supreme Court is indicating that, while prior precedent would point to a Chevron analysis, it might vacate the rule through a mechanism that limits or overturns Chevron.
For example, the Court could decide that it's vacating the rule in question, but not because the statute is unambiguously contrary to the agency's interpretation or because that interpretation is not one that could possibly fit within the statute, but instead because the Court feels that judges can in XYZ circumstances supplant the rulemaking process with its own judgment.
THAT'S the big break with history/precedent that Kevin is alluding to.
_____
*and it's not just any agency, btw. It has to be the agency specifically charged with implementing that particular statute. So, for example, the Forest Service does not get deference in any interpretation of, say, Title 26 concerning income tax . . .
Aldous Hickman is right in both his comments above:
I’m a subject matter expert in a federal agency that commonly has to decide how to implement our missions and legal authority as defined in law. We (and our lawyers) carefully parse the congressional language and intent, and if needed consult with the relevant House and Senate committee staff. It’s taken very seriously.
And Kevin is right that Congress does not have the knowledge or ability to make the kind of implementation decisions we experts are charged to do.
The main lesson here is that over the past century we have worked out these balances and built a system that works reasonably well and is key to our prosperity. It mystifies me why these wealthy businessmen who depend deeply on this system seek to break fundamental pieces of it, without any plan to replace them. The chaos that would result will not benefit them.
" It mystifies me why these wealthy businessmen who depend deeply on this system seek to break fundamental pieces of it"
What is wrong with the "default" answer, i.e. that they think they will have more money by breaking it?
I’m sure that’s the case.
My mystification is about how they can run a successful business which they must know depends on the longstanding rules of the game, yet be so blind to how those rules work.
I guess it’s extreme short term thinking causing the blindness, but still.
𝘐𝘯 𝘛𝘏𝘌𝘖𝘙𝘠, 𝘐 𝘵𝘩𝘪𝘯𝘬 𝘵𝘩𝘦𝘳𝘦 𝘪𝘴 𝘴𝘰𝘮𝘦 𝘮𝘦𝘳𝘪𝘵 𝘵𝘰 𝘵𝘩𝘦 𝘢𝘳𝘨𝘶𝘮𝘦𝘯𝘵 𝘵𝘩𝘢𝘵 𝘤𝘰𝘯𝘨𝘳𝘦𝘴𝘴 𝘴𝘩𝘰𝘶𝘭𝘥 𝘱𝘢𝘴𝘴 𝘭𝘢𝘸𝘴, 𝘶𝘱𝘥𝘢𝘵𝘦 𝘭𝘢𝘸𝘴 𝘦𝘵𝘤 𝘵𝘩𝘢𝘵 𝘢𝘥𝘥𝘳𝘦𝘴𝘴 𝘴𝘱𝘦𝘤𝘪𝘧𝘪𝘤 𝘪𝘴𝘴𝘶𝘦𝘴. 𝘐𝘯 𝘱𝘳𝘢𝘤𝘵𝘪𝘤𝘦, 𝘤𝘰𝘯𝘨𝘳𝘦𝘴𝘴 𝘪𝘴 𝘪𝘯𝘤𝘢𝘱𝘢𝘣𝘭𝘦 𝘰𝘧 𝘱𝘢𝘴𝘴𝘪𝘯𝘨 𝘰𝘳 𝘶𝘱𝘥𝘢𝘵𝘪𝘯𝘨 𝘭𝘢𝘸𝘴.
More accurately, Congress will not pass the laws you want.
Let's get real. Bureaucrats do not analyze the law and come up with the most accurate interpretation of Congress's intent that they can. They come up with the interpretation that is defensible and matches the current administration's policy preferences.
Eliminating Chevron tilts the balance of power back towards Congress and is faithful to the balance of powers in our system. Congress passes laws, the judiciary interprets them, and executive executes them.
I'm sure that a Congress that can't pass a budget on time (or ever) will somehow be able to speedily pass legislation on the thousands of regulatory and technical decisions and disputes that the federal government currently adjudicates within the various agencies created and staffed with subject experts to deal with them. Which is why lots of our peers let their legislatures deal directly with questions like "how many parts per million is too many for pollutant X in common household items." I mean, it's not like you need specialized knowledge to know what the answers are to those questions - it's just whatever your donors tell you is safe.
MF must be short for Mother Fcking Idiot.
Yes, in your world, I'm sure Congress can write a law that specifies the level of every chemical allowed in drinking water. By the way, what's the color of the sky there?
The laws have been passed and interpreted correctly but if one feels otherwise, then vote for a different executive. Laws forever will be interpreted and the Chevron deference is merely a common sense tool.
"Eliminating Chevron tilts the balance of power back towards Congress and is faithful to the balance of powers in our system."
No it doesn't. It tilts the balance of power towards the judiciary.
Also, we're a nation of over 330 million people with a $23 trillion economy. There is simply not enough bandwidth for 535 people to write all the laws needed for such a vast and complicated nation in detail. So Congress sets the broad directives, and has the agencies fill in the details. This happens all the time, and works pretty well. Congress also exercises extensive oversight (through the Congressional Review Act, passing new legislation, hauling agency personnel into hearings, etc.), which, fwiw, also happens all the time, and also works pretty well.
The only question is who do you defer to in the edge cases: the judgment of the agency, or the judgment of the judge? Given that the former is staffed with subject matter experts, constrained by the Administrative Procedure Act, and is executing the policy objectives of the President (the only nationally-elected office in our system), and the latter has neither the resources nor the institutional capacity to be subject-matter expert, and is unelected, deference to the agencies probably makes sense.
It's better for the tie to go to the runner than to the umpire.
The only question is who do you defer to in the edge cases: the judgment of the agency, or the judgment of the judge?
Obviously judges, since they all have STEM degrees
MF wrote “Bureaucrats do not analyze the law and come up with the most accurate interpretation of Congress's intent that they can.”
Yes, we do.
See my reply to Aldous Hickman above.
I guess your use of the team “bureaucrat” gives away your own view, My colleagues and I are indeed subject matter experts whose primary role is to advise leadership (congressional and executive) on how policies they advocate will play out In the real world.
From the slice of the Federal govt I see, most of us chose public service deliberately over corporate work where the pay is higher, often much higher. Our job satisfaction is priceless.
You have my sympathy for living in a dismal sphere that can’t understand that.
It is not exactly "conservatives", it is more the "keep rich people rich" movement.
The American "Conservative" movement has always been more about "keeping people rich" than being conservative in any sense of the word.
So don't call them "conservatives".
Our constitution was set up by white rich elites who very conspicuously wanted to stack the decks in favor of the affluent. So it’s really quite proper to call people who want to continue this tradition “conservatives.”
Specifically, keeping corporations rich. They do not like bureaucrats limiting their freedom of action to make more money how they see fit by imposing regulations on their behavior. Anything that makes it easier to challenge such regulations is good news for companies and bad news for the rest of us (unless of course you own a significant share of those corporations, s many of us with large IRAs actually kinda do, so it gets ambiguous)
Conservative judges already know more about history than historians do and and more about your personnal health care than your physician does.
Seems to me that doing away with Chevron right now is a little hasty with this bag of repulsive supremes. I’m not sure I trust any it of them right now.
For those of you who aren’t quite clear where democracy is going, give Tyranny of the Minority a read to make you think.
When Congress passed the AHCA, one of the criticisms was that the bill was too long and nobody could read it all (it was thousand of pages). So basically Republicans can always find ways to criticize laws they don’t like. One thing is clear, all laws require interpretation because that’s is the point of laws, to proscribe behaviour, so someone has to be doing the interpreting.
This is an excellent point. When the laws are detailed, they complain the laws are too detailed. When the laws are not detailed enough, they try to get the Supreme Court to say that laws must be very detailed.
Without bad faith……
Republicans would have no arguments at all…
Chevron underscores the whole problem with originalism: Things change faster than most democratic institutions can account for. Thus the need for expert agencies. Agency expertise is to ordinary law as judicial expertise is to the Constitution. Most laws, like the Constitution, are frameworks for action, not a set of detailed, step-by-step directions.
Personally I think being anti-"expertise" is just a symptom of doing the bidding of the oil industry. As Sen. Sheldon Whitehouse has observed, the GOP is funded by polluters in general. The polluters' goal is to shift the cost of the pollution onto the public. "Expertise" has gradually over the years gotten better at figuring out what the cost of that pollution is in lots of realms (health, environment) and has slowly tried to shift the cost back onto the polluters. That's why the GOP is against expertise, education and science in general, in my view. Of course this is exactly what Steve Bannon etc are talking about when they say they want to dismantle the "administrative state". The "administrative state" really means the EPA and any other government body that tries to protect air and water.
The hilarious thing is that Congress could override any agency's decision at any time, if it really doesn't like whatever it is. The fact that Congress doesn't do this for 99.99% of agency decisions implies that Congress approves of whatever the decisions are, or at least doesn't hate them enough to write legislation overruling them. This is just another example of Tyranny of the Minority meets Lincoln's Cooper Union speech: the MAGA faction of the GOP doesn't like the US administrative state and living in the 21st Century with all its complexity, and so they demand to either rule over us all or burn everything down.
A very good comment.
Congress even passed an act years ago to give themselves powers to more easily overturn some regulations, They seldom use it, https://crsreports.congress.gov/product/pdf/IF/IF10023
‘Expertise’ is exactly the issue. The Congressional Research Service employs a few hundred subject-matter experts. Federal agencies employ hundreds of thousands in medical, scientific and engineering occupations. The courts employ … law clerks. As aldoushickman explains, there are formal proceedings for agency rule making that allow for comment from the public, and from more experts from academia and industry. Austin notes that Congress has all the power it needs to rein in any agency that goes beyond Congress’ intent.
IMHO the Supreme Court has already weakened Chevron in creating the ‘major questions’ doctrine, by which the Court will void regulations that raise “
[continued]
“issues of major political or economic significance.” No economist sits on the Court, and this doctrine breaks from the Court’s historic deference to Congress and the Executive, the elected branches, over political issues.
This is an incredibly important point. "Major questions" is very much the court stating that, no matter what Congress said, if an agency rule is--in the court's opinion--a big deal, the court can invalidate it.
Which makes SCOTUS something like a star chamber or akin to Iran's Guardian Council of clerical weirdos (except said clerics don't have life terms like our Supremes do).
Pingback: Weekend link dump for January 21 | Off the Kuff