May 25, 2024
Who gets to make the rules in American government? One of the most controversial and important cases before the Supreme Court concerns that crucial question.
Congress makes the rules for the federal government in the form of laws. But federal agencies must enforce the law and often must make rules of their own – regulations – to do so. And courts then sometimes must resolve disputes about whether an agency’s regulations are well-grounded in the statutes that Congress produces.
About 40 years ago, the Supreme Court tried to make things less confusing by setting some ground rules about who gets to make the rules. The Supreme Court decided to create a rule about rules: It said that if an agency’s rule produced a reasonable interpretation of an ambiguous statute passed by Congress, then courts should defer to the agency. In other words: If an agency’s rule is challenged in court, then a court decides whether the agency’s rule makes for a reasonable interpretation of the statute. If the court decides that the agency’s rule is reasonable, then the agency’s rule – even when challenged in court – always wins.
Perhaps the architects of the Chevron principle thought this was a good way to reduce conflict between various parts of the government. Unfortunately, that solution created a new problem: an avalanche of new federal rulemaking that is increasingly difficult for citizens to challenge in court.
Critics of the Chevron principle – including several justices currently sitting on the Supreme Court – have noted that it appears to have a strange and disturbing consequence: Namely, in some circumstances it is agencies, not courts, that have the final word when interpreting the law.
Earlier this year, the Supreme Court heard the Loper Bright Enterprises v. Raimondo case, a lawsuit that unavoidably put the Chevron principle in the spotlight. The Loper Bright parties challenged a rule that requires professional fishermen to pay the salaries of government observers who are required to tag along aboard commercial fishing boats. It is not hard to see why the lawsuit was brought: Imagine if, one day, some federal bureaucrat told you that, from now on, not only is there going to be a new person at your workplace who will monitor you to ensure that you’re doing your job correctly, but you’re also going to have to pay his salary! (CEI submitted an amicus brief to the Supreme Court in this case.)
There is no statute that expressly requires fishermen to pay for their own federal monitors. Nonetheless, the agency’s regulation (that is supposed to be based on the statute) requires this payment. Whatever is going on here, it looks like the agency isn’t interpreting anything; instead, it looks like the agency is serving as an additional legislature. In short, this case is about two questions: first, whether the regulation genuinely springs from the statute and, second, whether Chevron prevents the court from looking at the first question.
Those who observed the oral argument for Loper Bright a few months ago have good reason to believe that Chevron is in the court’s crosshairs. At the argument, Justice Brett Kavanaugh observed that Chevron “ushers in shocks to the system every four or eight years when a new administration comes in,” bringing “massive change” to regulations regularly. That’s because there are plenty of agencies that take their cues from whoever is president and implement policies that they believe the boss will like.
Justice Neil Gorsuch then noted that Chevron also allows agencies to inject institutional self-interest into their own regulations. For instance, when agencies must deal with veterans’ benefits or Social Security claimants, Chevron encourages agencies to make rules that benefit those agencies but operate to the detriment of “the little guy” – because there is a danger that the agency will interpret the statute in a way that makes it as easy as possible to administer.
At the end of the oral argument, one of the lawyers before the court suggested that the Chevron rule could not be limited or modified; rather, he said, the court should “recognize that the fundamental problem is Chevron itself.” It’s a good bet that in the coming weeks the majority of justices will agree – and decide that it’s time once again to let the courts exercise their traditional function of interpreting the law.
This article was originally published by RealClearPolitics and made available via RealClearWire.
Editor’s Note: Should Chevron be struck down, the implications for the EPA, DOE, a host of other agencies, and the climate agenda of the Biden administration will be enormous. Hundreds if not thousands of regulations and programs will be in jeopardy.
Discover more from Watts Up With That?
Subscribe to get the latest posts sent to your email.
_____________________________________________________________
No different than paying the hangman for the service.
Get this- in Wokeachusetts, we have to have our vehicles inspected every year. Probably true in most states. But, I was told by a mechanic that the state has a camera set up next to all the stations where the inspections take place and that they can turn it on remotely any time they want to WATCH the mechanic doing the inspection!
No, the court has to find that leftist driven political ideology is the problem. THAT would fix the vast majority of what is wrong in US government in one fell swope.
So let’s see if I have got this right: If Congress makes the rule, the courts can strike it down. If Congress says an agency can make the rule, the courts can’t strike it down.
Hmmmm. How could any authoritarian not take advantage of that.
I’m waiting for Robert De Niro to weigh in.
I like him as an actor- but don’t like him as a mouthpiece for causes. I saw him ranting about Trump the other day. I don’t care that much for Trump either, but DeNiro’s rant was crazy.
Agree Joseph.
Political wannabees and “celebrities” appearances have become a contest to see who can out-crazy everyone else.
And The Deer Hunter is giving them all a good run for their money!
Travis Bickle didn’t die at the end of the movie. He overcame his psychosis with his movie ending good deed and was able to live a fairly normal life (although he was only able to make it work with girls half his age).
But now, 50 years later his psychosis is returning … TAXI DRIVER 2 … coming to a theater near you.
Entertainers should shut up about politics, no matter what their politics are. Not because they have much influence over voters, but rather, they are going to piss off roughly half of the public and many of their fans by mouthing off and trying to take advantage of their celebrity to influence voters
Of course a lot of entertainers do in fact cross that line, and sometimes they pay a heavy price (see Dixie Chicks).
Congress doesn’t make rules. Congress enacts statutes or laws which go into effect if enacted as Congressional bills signed by the President.
Since Congress is not an administrative agency that does not have the resources to regulate any activity at a detailed level, Congress usually delegates authority to specific agencies or their successor agencies (they get shuffled around from time to time) to write regulations to implement what is in the statute. The administrative agencies, under the direction of the Administrative Branch (i.e., the President), develop and publish such regulations. Congress has the authority to overrule agencies if it is believed that the agencies have gotten it wrong, but that requires passing both houses of Congress and getting it signed by the President. Which is a difficult if not practically impossible process.
So parties affected by the regulations have the right to sue the Agencies and seek court action to modify or reject the regulations if they do not have proper authority from Congress.
This isn’t authoritarian, it is exactly as the framers of the Constitution structured our Federal government. While the framers did not anticipate the size and scope of regulatory agencies, they nonetheless empowered the Administrative branch to see that the laws enacted by Congress are faithfully executed. If Congress and the Administrative branch do not agree that the rules are authorized, then individuals have the right to file suit. Congress itself does not typically file lawsuits against agencies.
“Congress enacts statutes or laws”. That sounds to me like Congress makes the rules. I didn’t claim that they administer them or that they don’t need POTUS approval.
Rules are not statutes, is the point. Congress enacts statutes, while administrative agencies enact rules but only to the extent that such rules are authorized by statutes.
So downvotes are given for stating facts that any middle school student must know to pass their civics course?
I don’t defend any particular rules – I explain how rules may be authorized, which is solely as authorized by Congress through enactment of statutes, or laws.
Are you idiot down-voters down voting the US Constitution?
SMH
re: ” Who Gets To Say What the Rules Are? ”
The aggressor.
A profundity: “The aggressor sets the rules.”
Kind of like the victors of a war write the history.
All this started with the original Progressive movement. They purposely wanted to create an “expert” led bureaucracy in the federal government as the fourth branch. Besides whatever altruistic motivations they held, the Progressives wanted to have a large employer for their kind to run the country better than elected commoners. The gigantic regulatory system we have is the logical result of that movement.
The Chevron defense was made to keep that system in from crumbling down, lawsuit by lawsuit. It had no basis in the constitution. It is one of the legal precedents that needs to be corrected.
Read Illiberal Reformers by Thomas C. Leonard for the history.
The problem is government itself. It is nothing but a coercive immortal bureaucracy, and the only way bureaucrats have of measuring success is budgets and subordinates. Ergo, growth is their only incentive. Markets keep private bureaucracies in check, but government is a monopoly with nothing to keep it in check.
Progressives are evil, but they merely took advantage of what others had been doing since time immemorial.
‘They purposely wanted to create an “expert” led bureaucracy in the federal government as the fourth branch.’
That’s only part of it. The other part is that some businesses saw regulation as a practical way to eliminate competitors and earn higher profits. In other words, crony capitalism aka fascism.
Right – regulatory capture is what happens when those so-called experts with high morals live in the real world. They want to control the economy more than with just regulations, so they get partner companies to lobby for subsidies to implement the bureaucrat’s plans. There is no army of philosopher kings running the government and never will be.
The human race, by and large, are a bunch of nasty naked apes. All groups- whether industrialists, labor unions, bureaucracies, political parties whatever always promote what’s in their interest. That’s one reason I spent 50 years working alone deep in the forests. Of course I couldn’t completely avoid all these groups since the state forestry burros (bureaucrats) have total control over every microscopic detail of the work of loggers and foresters. I had many battles and wars with them over the years. Those regulators make far more income than anyone who actually WORKS in forests. And most have almost zero experience working in forests- they go from grad school right into regulating white bearded guys like me. Ticks me off and the main reason I finally retired after 50 years. I could probably do another 10 but sick of the regulators.
There are private property management company’s in the northern rockies
that employ foresters. They seem to do nicely. The ones I have worked
with were great guys. The loggers wished I didn’t use them tho..
A lot of guys wished they could spend time in the out of doors and would
if they had guts enough to try it.
Also some of the agency foresters were good but there hands were
tied so to speak. One agency forester was from your region and after
a bit of conversation on site for a smz permit it occurred that we had
some common interests and what was supposed to be a short visit turned
into a 4hr tutorial that I owe a huge debit of gratitude for his generosity.
‘All groups- whether industrialists, labor unions, bureaucracies, political parties whatever always promote what’s in their interest.’
True, which is why free market ‘capitalism’ is the best economic ‘system’. It doesn’t require any of us to be saints, but only to realize that as we are all consumers who are sovereign and have choices, it is in our own self interest to best serve the needs of others.
Joseph,
The growth of regulatory interference in our mining work in Australia became so serious that I shifted my main effort from science to quasi-legal. It was evident that our resistance to bureaucratic harm would make us pariahs in the eyes of governments. After some formal law cases (judges reluctant to judge) and some spectacular stuff like sacking 1,100 union workers unless they agreed to no unionism, we were targeted, ridiculed, handicapped by governments despite assisting with a fair % of national income.
The core problem was as often, the giving of powers to regulate to people whose egos were greater than their ability and experience. Sadly, it has not got better. The communistic tint has become stronger, despite voters showing that they do not want that path. People and government have been quite divided in matters like a recent referendum – but the reaction saw the government doubling down instead of acting on the clear wishes of the majority of voters. Geoff S
Chevron will either be severely restricted or abolished. The case presented is a clear violation of the 5th amendments taking clause.
While there are reasonable necessary costs for property owners, excessive taxes on property can also be a takings. Texas brags about no income tax but property taxes, not as high as some states, were steadily increasing, mostly for education. They have come down recently, but Texas does need protection from the unprecedented invasion. The fifth mentions property and also due process which seems to be decreasing in many areas.
Needs to be abolished, completely.
But my guess is that the Court will try to limit the fallout to this specific case only.
(I had a city enforcement manager tell me my appeal was a waste of my money because “the hearings official has to interpret the code in the manner that the City tells him to, and we have already decided what the fine is”.
When it became obvious that they (the City) were going to lose, they pulled the whole case rather than have a reasonable precedent set by the hearings official.
So, they continue with a variable code, and skewing things to make their jobs easier, and screwing 99% of the people that don’t know how to protect themselves.)
Perhaps the EPA’s mission was accomplished decades ago and they have to find new reasons to justify their existence?
Given the opportunity, every department, agency, bureau, commission, etc., will work to increase it’s budget, manpower and control. That’s the nature of the beast.
We need reforms such as zero-based budgeting and more Congressional oversight and review of regulations. We need to put an expiration date on these bureaucracies.
Wishful thinking, I’m afraid.
In (theoretically) “democratic” societies the role of the … checks notes … “judicial system” has nothing whatsoever to do with the common person’s notions of “fairness” or “common sense” or even “justice”.
The courts are there to apply the law as it is written.
As the ATL article implies, higher — or “Supreme” — courts in various countries are there to resolve discrepancies between subjective and lobbyist-suggested clauses in those written laws and various “exceptional” and/or “corner” cases that subsequently arise out here in “The Real World” (TM).
Any case that is complicated enough to rise through the various lower-court levels and actually get onto the US (or any other country’s) Supreme Court’s “docket”, however, will by definition be a “very subjective” one.
Remember that the saying “The law is an ass” has a long and storied history before calculating the odds and placing your “bet”.
The Brandon administration has shown time and time again it doesn’t care what the Supreme Court says.
Government bureaucracy’s seem to be like a pendulum, always overcorrecting and is seldom
in the middle.
Yes, in all collective reactions to events, humans always firstly swing too far towards doing too much, or too far towards doing too little.
We always seem to neglect the first legitimate option of consideration –
“DO NOTHING”
Striking Chevron down so that bureaucrats cannot provide their own interpretation to statutes would force Congress to do its job that it often leaves up to a particular agency. A good step forward and one that would compliment the previous WVA v EPA ruling that reigned-in the regulatory authority of agencies. All to the good until the administration willfully ignores Supreme Court rulings and statutes and does what it wants without much concern about being held accountable which negates everything.
Even when the ‘rules’ are ignored ….. student debt anyone? …. the Marxist get away with it because they control the DA. Can’t have a indictment without DA approval.
“Hundreds if not thousands of regulations and programs will be in jeopardy.” One might say that many many Federal agency rules, possibly a majority of which represent Federal agency “overreach”, would now stand to be corrected to the benefit of the people of the United States and the States that make up the republic.
You are describing the “deep state” that has been steadily dragging upon our freedom and many times causing us $$ and time and energy to do simple household repairs or inprovements or landscaping.
Gums whines…
“But federal agencies must enforce the law and often must make rules of their own – regulations – to do so.”
But… not that I know— but, I believe rule making isn’t quite that arbitrary. At least in Wokeachusetts, when the state makes regulations and rules, it’s a complex process. They need to have hearings, call for comments, they’ll do webinars, etc., etc. Of course they don’t really listen to anyone as they have it all determined ahead of time. But it seems here, it takes a long time. I presume something like this at the federal level too.
Rulemaking by government agencies assumes goodwill and guidance by the strictest intent of the law itself. This will play out differently between Democrat and Republican governments simply because Republicans seek to make government small and taxes low, whereas Democrats seek to widen jurisdiction and ‘Nannyize’ government. The result is an ever larger gov presence in American lives, because of accretion of Democrat precedents in rulemaking.
Witness the constant pushing up against SCOTUS by Democrat gov even to the extent of ignoring matters already adjudicated by SCOTUS.
Yep, and this is probably the most serious problem facing the collective West. When the “rules for thee but not for me” becomes so blatant as it is now, Joe Public will eventually simply stop following them. The punks and gangstas at the bottom end don’t follow the rules, the crack-smoking sons of prominent public figures don’t either, and Mr Middleman is getting tired of being the only one with constraints. If there’s a civil war in the USA, I doubt it’ll be left vs. right, I reckon it’ll be top vs. bottom.
We need to do a Jack Welch on the bureaucracy and fire the bottom 10% of the personnel each year for 5 years running.
Top 10%?
When a government makes onerous laws which are NOT supported by science, which is supported by Scientific Method, their laws do not support the welfare of the people but are dictates OVER the people and enslave them.
The Chevron Rule is going down, or will at least be severely constricted by this SCOTUS, which has repeatedly ruled against Federal agencies that claim powers not granted by Federal law. The agencies do need some deference for the purpose of deciding exactly how to regulate an activity that Congress clearly intended to regulate. But they cross a line when agencies claim authority that simply does not exist in the statutes.
For example, Congress clearly did not intend to regulate a naturally occurring, naturally generated gas that all living things emit as if it were a “pollutant”. Something that far reaching in its impacts clearly deserves Federal statutory authority to regulate it. The Clean Air Act Amendments of 1990 explicitly lists six types of pollutants that must be limited: particulate matter, ground-level ozone, carbon monoxide, sulfur oxides, nitrogen oxides, and lead. Not carbon dioxide.
Yup, plus if you review the requirements for catalytic converters on automobiles you’ll find they were introduced to turn carbon monoxide into HARMLESS CO2 and water vapor.
And there’s no way something HARMLESS should ever be classified as a “pollutant.”
Unfortunately, striking down Chevron will not stop the use of NGO lawfare as a way to force compliance with Green agendas.
The government is out of control and needs to be downsized big time.
There might be a traditional function of interpreting the law by the Supreme Court, but there is no constitutional provision for them doing so. Article 3 defines their role, and nowhere does it say anything about interpreting.
Exactly right! If any branch of the Federal government acts unconstitutionally, there’s no prohibition against any of the other branches from taking steps to curtail said acts.
More importantly, the people of the States not only have the right but are duty bound to nullify any unconstitutional act of the Federal government by preventing the implementation of that act within their State.