I may not be a constitutional scholar (although I did get a perfect score on my 8th grade Constitution test), but sometimes I get to play one on my blog.
I wrote last week about the Supreme Court case that will decide the fate of “Chevron Deference.” Chevron deference is a judicial doctrine that says when Congress was not clear about the details of a law, the Courts should defer to the expert agencies whose job it is to implement the law, as long as their decisions are “reasonable.”
Business organizations and conservative think-tanks think that gives too much power to the President. They want the courts to be able to transfer that authority back to Congress, which would then theoretically write regulations themselves or pass laws that would be more specific about what regulations agencies are allowed to issue.
The case was heard before the Supreme Court last week and professional tea leaf readers predict that there are currently four Justices who want to get rid of Chevron (Thomas, Alito, Gorsuch and Kavenaugh), three who want to keep it (Sotomayor, Kagan and Jackson), and two (Chief Justice Roberts and Amy Coney Barrett), and who are on the fence.
There have been numerous editorials since the case was argued and I can’t resist one more rant for my faithful readers.
Does More Responsibility Cure Incompetence?
Conservative commentators, like David French in yesterday’s New York Times, argue that Chevron has robbed Congress of its power and given too much authority to the Executive Branch and the agencies that issue regulations.
This is a constitutional tragedy, according to French, because Congress is “the branch closest to the people. Members of the House and Senate are elected by popular vote,” whereas no one ever votes for federal judges and the Electoral College “distances the presidency from majority rule.” Somehow this all makes Congress the most important and most democratic branch of government.
But if that made Constitutional sense (which it doesn’t, as explained below), it doesn’t take a political science major to see that Congress is paralyzed, almost completely unable to pass any laws aside from those required to keep the government running. And even those duties are always in doubt.
French agrees:
Congress is not performing its constitutional tasks. It’s a broken institution that contains too few genuine lawmakers and far too many would-be activists and TV pundits. Time and again, it has proved incapable of compromise or of accomplishing even the most basic legislative tasks.
What’s the cause of this dysfunction? According to French, the cause is Chevron deference. Like an addictive drug that causes paralysis, Chevron
encourages congressional inaction and incompetence. If the agencies can take over when Congress is silent or ambiguous, it diminishes the necessity for Congress to speak clearly. It’s much easier to punt the hard decisions to the president, and then heckle (or cheer) from Fox News or MSNBC.
But never fear. The solution is clear: Getting rid of Chevron would be the antidote. Rescinding Chevron would miraculously force Congress to get its act together, to do its job and pass more detailed laws — or at least pass legislation that would authorize Executive Branch agencies to issue specific regulations.
As conservative Washington Post columnist George Will wrote last week,
Congress would…have to be more involved in writing, and therefore accountable for, regulations. By erasing Chevron, the court would force Congress out of its lassitude, whereby it allows agencies vast discretion to interpret vague statutes that are tissues of generalities.
Makes total sense, right?
If your accountant never gets your taxes done on time, do you give him more control over your finances because that new authority will then suddenly “force him out of his lassitude?”
I mean, if your Mayor is constantly battling an incompetent, dysfunctional do-nothing city council, do you give the City Council more power in the hope that more responsibility will force them to do their jobs?
If your accountant never gets your taxes done on time, do you give him more control over your finances because that new authority will then suddenly “force him out of his lassitude?”
Incompetence is Not Neutral
Now, at the risk of sounding “partisan” or cynical, the truth is that this whole debate is more about political power than it is about Constitutional issues. History has shown us that the “administrative state” — the power of federal agencies like OSHA, MSHA, EPA and many other Executive Branch agencies to issue regulations protecting workers, consumers and the environment — is often the only thing that prevents total corporate dominance over Americans’ lives.
At the risk of sounding “partisan” or cynical, the truth is that this whole debate is more about political power than it is about Constitutional issues.
And that fact, not Constitutional theory, is why today’s Republicans and business interests are so anxious to get rid of Chevron.
A long time ago, Congress passed the Occupational Safety and Health Act, as well as various environmental and consumer protection laws. All were passed with bipartisan majorities. The OSHAct and most of today’s environmental laws were signed by Richard Nixon.
Today we have a very different Republicans party — a party that would, if it could, completely eliminate all of those laws and the regulations they authorized. Unfortunately, they don’t have the votes to do that.
But if you can’t get rid of those laws, the next best thing is to hobble those agencies that execute them. How? By giving conservative courts the power to overturn those regulations and, in the name of Constitutional democracy, return that power to Congress, knowing full well that Congress will do nothing to authorize the agencies to do the work that Congress originally authorized them to do.
This is bad, because Congressional incompetence is not a neutral problem affecting everyone equally. Congress’s failure to function serves the interests of the business community and conservative Republicans who don’t want government to work. If OSHA is unable to issue standards protecting workers, if EPA is unable to issue regulations protecting the environment, if the FDA and USDA are unable to issue protections to ensure the safety of food and drugs — who wins?
Congressional incompetence is not a neutral problem affecting everyone equally. Congress’s failure to function serves the interests of the business community and conservative Republicans who don’t want government to work
Dysfunction and paralysis is bad for everyone, but it’s much, much worse for those whose only hope for a safe and secure life for themselves and their families is the ability of government to issue regulatory protections.
Regulatory Whiplash
Finally, French argues that Chevron destabilizes our country because a President can use the administrative state to abruptly reverse the policies of his predecessor from a different party. But political partisanship is not limited to the Executive Branch. Can French really argue with a straight face that the same problem doesn’t exist between judges appointed by Presidents of different parties, or when the majority in Congress changes from one party to the other?
Sure, a President can reverse the policies of his predecessor (but not without going through a lengthy regulatory process), but so can Congress and so can the judiciary. In fact, like no Supreme Court in American history, this Court has made starkly clear that they no longer respect the foundational concept of Stare Decisis — the principle that holds that courts and judges should honor “precedent”—or the decisions, rulings, and opinions from prior cases.
Chevron for Me, But not for Thee
A few other points:
Chevron is a Partisan Issue
Some argue, as French does, that this is not really a partisan issue. Plenty of Republicans believe in the “unitary executive,” where the President has much more power than Congress. French points out that even Conservatives like the late Supreme Court Justice Antonin Scalia, supported Chevron deference.
Ironically, Chevron v. Natural Resources Defense Council was originally a defeat for liberals. The specific regulation that was upheld by the 1984 Chevron case was issued by Anne Gorsuch, the mother of Trump Supreme court Justice Neil Gorsuch. The original Chevron decision gave Reagan’s EPA the “deference” to issue regulations that environmentalists, like the Natural Resources Defense Council opposed.
But Republicans eventually soured on formerly bipartisan efforts to protect workers, consumers and the environment. So when Chevron deference began to work against business interests, conservatives changed their minds about the benefits of deference. Suddenly deferring to agency experts was a bad thing.
But Republicans eventually soured on formerly bipartisan efforts to protect workers, consumers and the environment. So when Chevron deference began to work against business interests, conservatives like Scalia changed their minds about the benefits of deference.
Suddenly deferring to agency experts was a bad thing.
Chevron did not cause Congressional dysfunction
History does not support French’s argument that the 40-year old Chevron decision caused the current dysfunction we see in Congress.
Congress’s current paralysis is a relatively recent phenomena, beginning in earnest during the Obama administration when Senate Majority Leader Mitch McConnell decided to use the filibuster for every piece of legislation, rather than the exception. Added to that are current House Republicans who have spent the last twenty years more focused on internal disputes than actually running the country.
Chevron did not create the Administrative State
Furthermore, the the evil “administrative state” was not a product of Chevron; it goes back at least to the New Deal and much further if we look back to the regulation of the railroads and food and drug safety in the late 19th and early 20th centuries.
The Constitution supports the Administrative State
Finally, as I mentioned above, I may not be a constitutional scholar, but Article II, Section 3 of the Constitution seems pretty clear to me when it states that the President “shall take Care that the Laws be faithfully executed.”
Getting rid of Chevron deference turns that Constitutional power over to Congress, which cannot now, nor ever could, faithfully execute the laws they pass. Not only is it not their jobs, but they can’t even get it together to faithfully execute the jobs they actually have.
This particular political debate has virtually nothing to do with the regulatory authority granted to executive agencies by Congress.
Over the course of many decades, Congress has been smart enough to understand that it does not have the requisite knowledge and expertise with which to promulgate standards and regulations that speak to the exceptionally wide universe of subjects that require such standards and regulations as a matter of law, fact, fairness and equity. Congress has relied upon executive agencies to staff themselves with subject matter experts who do have the knowledge and expertise to propose and finalize standards and regulations which fulfill the mandates of the statutes that Congress (and the President) enroll within the U.S. Code.
To further ensure that such standards and regulations pass Constitutional muster, the Administrative Procedure Act tightly controls the method and manner in which Federal standards and regulations are promulgated. Moreover, further safeguards are in place to ensure that it is not the knowledgeable bureaucracy alone that has the final say into what becomes enshrined within the Code of Federal Regulations (CFR). All such standards and regulations must, of necessity, be reviewed and approved by the White House’s Office of Management and Budget (OMB). Within OMB, there exists an entity known as the Office of Information and Regulatory Analysis (OIRA). From experience, I can say that getting questioned by OIRA as to the content of standards and regulations I’ve overseen as an OSHA staffer is not a fun-filled experience. They are there to ensure that provisions that go into the CFR are soundly based and conform to the statute that enables their existence. OIRA/OMB closely interact with the Oval Office on such regulatory issues.
Thus, to say that “unelected and unanswerable” Federal regulatory bodies act alone in the promulgation of standards and regulations which both impose and mitigate burdens upon our society is a gross misstatement. Last time I looked, the occupant of the Oval Office was certainly elected to be there. Moreover, he is answerable to “the people” every four years………
you are spot on my friend. How anyone could think Congress would or even could enforce technical regulations is laughable -especially with the crazies in the House now.
Very well stated, Jordan