17 states: The time has come to reconsider Chevron deference and this is the case to do it with

July 06, 2018 | By JONATHAN WOOD

As the President prepares to nominate a new Supreme Court justice, one of the major issues likely to turn on that choice is the fate of Chevron deference. According to that infamous doctrine, courts must defer to agency’s interpretations of the statutes they administer unless that interpretation is patently unreasonable. In practice, courts have used Chevron to abdicate responsibility to enforce the law as written by Congress, opting instead to give unaccountable federal agencies free rein. All supporters of the Constitution’s separation of powers should be concerned about the impact of this massive transfer of power from Congress and the courts to bureaucrats.

We may not have to wait very long for the new justice to weigh in on this issue. Texas, joined by 16 other states, has filed an amicus brief urging the Supreme Court to grant PLF’s cert petition in California Sea Urchin Commission v. Combs as a vehicle to overturn Chevron.

[T]he time has come to reconsider Chevron deference, and this case provides an appropriate vehicle. Although the Court does not lightly reconsider its precedents, it has not hesitated to do so when “experience has pointed up the precedent’s shortcomings.

As Texas notes, Chevron’s shortcomings are numerous. Chevron upsets the Constitution’s separation of powers by allowing federal agencies to consolidate legislative and judicial powers that belong to Congress and the courts. It also places agency convenience over Due Process and fairness to the American people:

It is doubtless convenient for federal agencies to have little restraint on their interpretation of federal law; to be able to change their minds at any time, for any reason; and to receive deference even for interpretations expressed retroactively. But there is a price to be paid for these conveniences, and it is paid by those who are subject to the agency’s regulatory authority.

Also, according to the states, “federalism principles are inevitably marginalized when federal power is exercised by agencies rather than by Congress.”

Our case has also drawn support from our friends at the Cato Institute, Goldwater Institute, and Cause of Action Institute; the Buckeye Institute; and the Landmark Legal Foundation.

California Sea Urchin Commission exemplifies the dangers of Chevron. In this case, a federal agency has declared itself to have the power to upend a compromise that Congress solidified by statute.

Congress wished to authorize the agency to pursue a plan to recover the California sea otter, but imposed strings on that authority to protect a fishery and those whose livelihoods depend on it. Now, despite having exercised the authority and established a thriving otter population in Southern California, the agency has declared that it may void the fishery protections required by Congress. The problem, for the agency, is that Congress was remarkably clear that these protections “shall” and “must” be adopted and implemented as a condition of establishing the otter population. Nothing in the statute authorizes the agency to ignore these requirements.

But that didn’t stop the Ninth Circuit from using Chevron to rule for the agency anyway. According to the Ninth Circuit, which has an extreme view of Chevron, it doesn’t matter that the statute “does not speak to the issue of termination at all.” Unless Congress explicitly and emphatically forbids an agency from doing something, the Ninth Circuit will treat silence as justification to defer to the agency.

It is doubtful that the Supreme Court would accept such a broad theory of agency power. Earlier this year, the New York Times described the President’s approach to selecting judicial nominees as a search for “devot[ion] to a legal doctrine that challenges the broad power federal agencies have to interpret laws and enforce regulations . . . Those not on board with this agenda, the White House has said, are unlikely to be nominated by President Trump.”

Justice Gorsuch, President Trump’s first Supreme Court appointee, is a vocal critic of Chevron. As a Tenth Circuit judge, he wrote:

Chevron . . . permit[s] executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate[s] federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. . . . [It replaces] an independent decisionmaker seeking to declare the law’s meaning as fairly as possible—the decisionmaker promised to them by law [with] an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day.

In questioning Chevron deference, Justice Gorsuch is in good company. There’s a growing chorus against Chevron—especially as applied by overly deferential courts.

Justice Kennedy, in one of his last opinions, urged the Court to “reconsider, in an appropriate case, the premises that underlie Chevron and how courts have implemented that decision.” In practice, Justice Kennedy explained, the doctrine has been converted into a “type of reflexive deference” which, especially when applied to questions of the scope of an agency’s power, “is more troubling still.”

Chief Justice Roberts has also sharply criticized the ever-expanding understanding of Chevron deference. In his famous dissent in City of Arlington v. FCC, the Chief Justice wrote that the “Framers could hardly have envisioned today’s ‘vast and varied federal bureaucracy’ and the authority administrative agencies now hold over our economic, social, and political activities.” Although “[i]t would be a bit much to describe the result as ‘the very definition of tyranny’”—as James Madison, the Father of the Constitution, famously did—“the danger posed by the growing power of the administrative state cannot be dismissed.”

[The Court must] ensur[e] that the Legislative Branch has in fact delegated lawmaking power to an agency within the Executive Branch, before the Judiciary defers to the Executive on what the law is. That concern is heightened, not diminished, by the fact that the administrative agencies, as a practical matter, draw upon a potent brew of executive, legislative, and judicial power. And it is heightened, not diminished, by the dramatic shift in power over the last 50 years from Congress to the Executive—a shift effected through the administrative agencies.

Justice Thomas has urged the Court to declare the entire practice unconstitutional. “[W]e should be alarmed,” Justice Thomas explained, that federal bureaucrats feel “sufficiently emboldened by [Chevron]” to claim any power that might suit them in a particular case, regardless of what the law says. “[W]e seem to be straying further and further from the Constitution without so much as pausing to ask why.”

Texas and the 16 states that joined its amicus brief think now is the time for the Court to pause and consider these important issues. We agree. California Sea Urchin Commission is an excellent opportunity for the Court to restore the Constitution’s separation of powers and restrain the administrative state.