Listen4 minShareComment on this storyCommentAdd to your saved storiesSave
Hyperbole being the default setting in today’s discourse, we are warned that the oral arguments the Supreme Court will hear on Wednesday concern cases that could, some progressive commentators insist, “kneecap” and “take a sledgehammer” to federal agencies. And could end the government’s “capacity to address the most pressing issues of our time.”
Need something to talk about? Text us for thought-provoking opinions that can break any awkward silence.ArrowRightThis capacity already seems nonexistent. And the people who say that the doctrine of “Chevron deference,” at issue Wednesday, is indispensable to today’s government are actually saying two things: That today’s government is incompatible with the Constitution. And that enabling the former is more important than respecting the latter.
The cases involve four small, family-owned herring fishing companies that have been ordered by a federal agency to pay the cost of a regulation the agency has decreed. The agency has ordered their fishing vessels to carry, and pay the cost of , onboard government observers. The cost can be more than $700 a day, reducing the companies’ profits 20 percent. The issue is not whether the policy (it pertains to overfishing) is wise, but whether the agency can properly impose the financial burden, absent explicit statutory authorization.
Advertisement
The principle of Chevron deference, first propounded by the court in 1984, is that where legislative language is ambiguous or silent, a court reviewing an agency’s action should defer to the agency if its action is “reasonable.” This expressed progressivism’s core conviction that animates the sprawling administrative state: Modern America’s complexities require minute management by experts, who require — whose expertise justifies — vast discretion barely circumscribed by Congress.
Follow this authorGeorge F. Will's opinionsFollow
In an amicus brief supporting the fishermen, 36 members of Congress argue that Chevron encourages two derelictions of duty — Congress’s duty to legislate, and judges’ duty to adjudicate questions of law. An agency counting on judicial deference becomes what Justice Antonin Scalia called “a junior varsity Congress,” telling Congress what it (perhaps) intended when it passed a vague semi-sort-of “law.”
Under Chevron, agencies do, illegitimately, what Chief Justice John Marshall said is the judiciary’s job: to “say what the law is.” The members of Congress’s amicus brief argues that not only does this commingling of executive and legislative powers “offend the fabric of the Constitution,” it also violates the Administrative Procedure Act of 1946 (APA). This set rules for the administrative state, which then was beginning to balloon.
Advertisement
With the APA, Congress stipulated that courts would “interpret” statutes and decide “all” questions of law. It would be incongruous for the court to merely prune, rather than erase, Chevron deference. The court should not allow Congress the power to expressly delegate major rulemaking discretion to agencies. Congress lacks the power to issue judicially binding interpretations of laws; therefore it cannot delegate, by statutes, such power to the executive.
Courts would never defer to agencies’ interpretations of the Constitution. Why do so regarding statutes?
Chevron is a perpetual thumb on the scale, favoring today’s swollen executive. And favoring the most powerful litigant, the federal government, when it is challenged by citizens, whom Chevron deference leaves uncertain about their legal rights and duties.
Advertisement
Eliminating Chevron would not, as excitable progressives claim, cripple the government’s power to do progressives’ favorite thing: regulate. Congress’s regulatory power would be undiminished. Congress would, however, 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.
“The interpretation of the laws,” wrote Alexander Hamilton in Federalist 78, “is the proper and peculiar province of the courts.” Ending Chevron deference, which has transferred power from Article III courts to the Article II executive, would restore a judicial responsibility and would require Congress to exercise its atrophied ability to legislate unambiguously.
Furthermore, erasing Chevron would be congruent with the court’s recent, and excellent, formulation of the “major questions” doctrine, which is: If an administrative agency makes a decision with substantial economic and/or social impacts, and the decision is not based on explicit statutory authority, then the agency bears the burden of proving that its action reflects Congress’s intent.
Advertisement
The Biden administration says that discarding Chevron would be — hyperbole alert — a “convulsive shock” to government. This is implicitly a damning acknowledgment that today’s government depends on (what should be) a shocking departure from the Constitution’s vesting of particular powers and responsibilities in the legislative and judicial branches.
Ending Chevron would end this foolishness: Congress passes laws; later, agencies tell Congress what it has done.
Share Comments
Popular opinions articles
HAND CURATED
- Opinion|Donald Trump isn’t coming for us. The rule of law is coming for him. January 10, 2024Opinion|Donald Trump isn’t coming for us. The rule of law is coming for him. January 10, 2024
- Opinion|The justices will keep Trump on the ballot. Here’s how (and why) they’ll do it.January 10, 2024Opinion|The justices will keep Trump on the ballot. Here’s how (and why) they’ll do it.January 10, 2024
- Opinion|Texas makes a most unconservative Supreme Court argumentJanuary 10, 2024Opinion|Texas makes a most unconservative Supreme Court argumentJanuary 10, 2024
View 3 more stories
Loading...
Hyperbole being the default setting in today’s discourse, we are warned that the oral arguments the Supreme Court will hear on Wednesday concern cases that could, some progressive commentators insist, “kneecap” and “take a sledgehammer” to federal agencies. And could end the government’s “capacity to address the most pressing issues of our time.”
This capacity already seems nonexistent. And the people who say that the doctrine of “Chevron deference,” at issue Wednesday, is indispensable to today’s government are actually saying two things: That today’s government is incompatible with the Constitution. And that enabling the former is more important than respecting the latter.
The cases involve four small, family-owned herring fishing companies that have been ordered by a federal agency to pay the cost of a regulation the agency has decreed. The agency has ordered their fishing vessels to carry, and pay the cost of , onboard government observers. The cost can be more than $700 a day, reducing the companies’ profits 20 percent. The issue is not whether the policy (it pertains to overfishing) is wise, but whether the agency can properly impose the financial burden, absent explicit statutory authorization.
The principle of Chevron deference, first propounded by the court in 1984, is that where legislative language is ambiguous or silent, a court reviewing an agency’s action should defer to the agency if its action is “reasonable.” This expressed progressivism’s core conviction that animates the sprawling administrative state: Modern America’s complexities require minute management by experts, who require — whose expertise justifies — vast discretion barely circumscribed by Congress.
In an amicus brief supporting the fishermen, 36 members of Congress argue that Chevron encourages two derelictions of duty — Congress’s duty to legislate, and judges’ duty to adjudicate questions of law. An agency counting on judicial deference becomes what Justice Antonin Scalia called “a junior varsity Congress,” telling Congress what it (perhaps) intended when it passed a vague semi-sort-of “law.”
Under Chevron, agencies do, illegitimately, what Chief Justice John Marshall said is the judiciary’s job: to “say what the law is.” The members of Congress’s amicus brief argues that not only does this commingling of executive and legislative powers “offend the fabric of the Constitution,” it also violates the Administrative Procedure Act of 1946 (APA). This set rules for the administrative state, which then was beginning to balloon.
With the APA, Congress stipulated that courts would “interpret” statutes and decide “all” questions of law. It would be incongruous for the court to merely prune, rather than erase, Chevron deference. The court should not allow Congress the power to expressly delegate major rulemaking discretion to agencies. Congress lacks the power to issue judicially binding interpretations of laws; therefore it cannot delegate, by statutes, such power to the executive.
Courts would never defer to agencies’ interpretations of the Constitution. Why do so regarding statutes?
Chevron is a perpetual thumb on the scale, favoring today’s swollen executive. And favoring the most powerful litigant, the federal government, when it is challenged by citizens, whom Chevron deference leaves uncertain about their legal rights and duties.
Eliminating Chevron would not, as excitable progressives claim, cripple the government’s power to do progressives’ favorite thing: regulate. Congress’s regulatory power would be undiminished. Congress would, however, 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.
“The interpretation of the laws,” wrote Alexander Hamilton in Federalist 78, “is the proper and peculiar province of the courts.” Ending Chevron deference, which has transferred power from Article III courts to the Article II executive, would restore a judicial responsibility and would require Congress to exercise its atrophied ability to legislate unambiguously.
Furthermore, erasing Chevron would be congruent with the court’s recent, and excellent, formulation of the “major questions” doctrine, which is: If an administrative agency makes a decision with substantial economic and/or social impacts, and the decision is not based on explicit statutory authority, then the agency bears the burden of proving that its action reflects Congress’s intent.
The Biden administration says that discarding Chevron would be — hyperbole alert — a “convulsive shock” to government. This is implicitly a damning acknowledgment that today’s government depends on (what should be) a shocking departure from the Constitution’s vesting of particular powers and responsibilities in the legislative and judicial branches.
Ending Chevron would end this foolishness: Congress passes laws; later, agencies tell Congress what it has done.
login
who are we?
contact us
qosheapp
Toi Staff
Gideon Levy
Belen Fernandez
Andrew Mitrovica
Mort Laitner
Nikkei Editorial
Ali Fathollah-Nejad
Rami G Khouri
visit website
