This past week, the Supreme Court agreed to take up the second of two cases focusing on "Chevron Deference" - a concept in American regulatory policy with nearly a half-century on the books. The two cases, Loper and Relentless, deal with the government's authority to mandate that fishing boats carry human monitors on them to oversee their fishing operations, and do so at the cost of the fishing businesses themselves. But since Congress never explicitly passed a law that says, "fishermen, you need to carry these monitors on your boats and foot the bill for the wages yourselves", where does the executive branch get the power to mandate this?
The answer is something called "Chevron Deference," which speaks to the balance of power between the judicial and executive branches of the U.S. government.
What is Chevron Deference?
In 1984, the Supreme Court decided a pivotal case: Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. This case concerned an interpretation of the Clean Air Act by the Environmental Protection Agency (EPA), a federal administrative agency.
The Supreme Court, in its ruling, outlined a two-step process for courts to use when reviewing agency interpretations of statutes:
Step One: If the statute is clear, then both the court and the agency must follow the statute.
Step Two: If the statute is ambiguous, then the court should defer to the agency's interpretation, as long as it is a reasonable one.
In essence, Chevron deference gives agencies wide latitude to interpret ambiguous statutes they are entrusted to administer, even if the court might interpret the statute differently.
It's how, for example, when Congress passes a law like the Clean Water Act which says you cannot "pollute a navigable water of the United States", but then doesn't define "pollute", "navigable" or "water of the United States", the EPA can turn a dry patch of desert in the high desert of Nevada into a "navigable water of the United States", subject to their regulatory jurisdiction.
Why is Chevron Deference Controversial?
Several concerns arise from the principle of Chevron deference, especially among those wary of an expanding executive branch:
Concentration of Power: With Chevron deference, agencies can both create and interpret regulations. This means that the same entity that enforces the law is also empowered to interpret it, potentially concentrating too much power in the executive branch and thereby upsetting the balance of power among the three branches of government.
Accountability: Federal agencies are not directly accountable to voters in the same way elected officials are. When courts defer to agency interpretations, it can be argued that unelected bureaucrats are making important decisions without the direct oversight of the electorate.
Legal Stability: When administrations change, agency interpretations might change as well. This can lead to legal uncertainty, as businesses and individuals may struggle to keep up with shifting regulations.
Judicial Abdication: Critics argue that Chevron deference amounts to courts abdicating their role as the primary interpreters of the law. The judiciary, they argue, should be the final arbiter of what a statute means, not administrative agencies.
The Case for Overturning Chevron
Given these concerns, many believe that overturning Chevron deference (or at least reining it in) would be beneficial for several reasons:
Strengthening the Judiciary: It would reestablish the judiciary as the primary interpreter of laws, reinforcing the idea of checks and balances.
Enhancing Accountability: Ensuring that only clear and unambiguous laws are enacted would place the onus back on Congress to draft clear legislation, thereby making elected officials more accountable for the laws they pass.
Legal Predictability: By reducing the scope for varying interpretations by different administrations, businesses and individuals can have more predictability and stability in the legal landscape.
In conclusion, while Chevron deference was established with the aim of allowing agencies to effectively administer complex statutes, its implications on the balance of power and legal predictability have been a cause for concern. As the debate continues, it’s crucial for citizens to understand the stakes and engage in a balanced discourse about the future of administrative law in the U.S.