Originally published by The Hill, September 4, 2018.
Confirmation hearings are in progress on Judge Brett Kavanaugh’s nomination to the U.S. Supreme Court. With them comes progressive hand-wringing over the possibility that the Supreme Court will abandon their beloved Chevron deference.
The sooner it does, the better.
Senators who should know better, including many well-trained lawyers, treat Chevron as though it’s the only way executive agencies can protect the public from danger. Not even close. Agencies get their rulemaking authority directly from Congress, whose laws direct agencies to adopt regulations.Chevron deference has nothing to do with agency power to write regulations. It has everything to do with whether those regulations faithfully implement the statute passed by Congress, or are just something the agency made up. The name comes from a 1984 Supreme Court decision holding that if a statute’s meaning is unclear, then judges are to let agency bureaucrats decide what it means — and even repeatedly change their mind.
Oddly, given the left’s fondness for the doctrine, Chevron Corporation (currently in Fortune 500’s top 20) beat the Natural Resources Defense Council in the case, based on a regulation rewritten in the oil giant’s favor by Justice Gorsuch’s mother while she led the Environmental Protection Agency (EPA) during the Reagan administration. Veteran members of the Senate Judiciary Committee likely know all of this, but still love Chevron anyway.
Fast-forward to 2018: Chevron is the reason everything the government does is politicized. Don’t like the way this administration (or the last) blithely rewrote rules on worker safety, environmental protection, or education policy? You can blame court deference to cabinet officials under Chevron. By deferring to agencies, courts never say what the law really means. They just set outer boundaries for how far agencies can go when they rewrite laws.
Think of it like a dial. If a statute is ambiguous about what employers must do to protect their workers, for example, then Chevron lets each succeeding administration rewrite the law, turning the dial back and forth, between 1 and 10, to suit their political constituencies — while we citizens who have to comply with these ever-changing rules are whipsawed back and forth with the political winds.
The law is not supposed to work this way. It should clearly inform us what we must do or not do, so that we can order our conduct accordingly. If judges were to interpret statutes once and for all, the dial is set at one number and stays there. If judges are faithful in their work, their interpretation will set the dial at the number intended by Congress. If the dial needs turning, it should be done by Congress, invested by the Constitution with legislative responsibility and voter accountability.
But under Chevron, the courts abdicate their constitutional role as interpreters of Congress’ laws. Instead of exercising independent judgment as a check-and-balance on the political branches, they abandon the law (and us with it) to political reinvention with every new administration. Among other ill effects, this reduces the law to a game between competing parties instead of a uniform, consistent and knowable code of conduct for everyone.
Chevron deference, with the regulatory seesaw it enables, subjects even an administration’s supporters to abuse. This administration’s EPA has badly flailed about in its efforts to reform Clean Water Act enforcement. Could it be, at least in part, because enshrining durable regulatory reform would get the EPA out of our hair and our mud puddles, and negate the need for Republican politicians and their endless promises to tame out-of-control bureaucrats?
The U.S. Supreme Court can end this by abandoning Chevron deference and returning to its constitutional responsibility to independently, faithfully, and conclusively interpret statutes. We call upon the chief justice and members of the court to give us back the law. We tire of what politicians and bureaucrats have made of it, and we deserve better.
Tony Francois is a senior attorney at Pacific Legal Foundation, which litigates to enforce the Constitution’s guarantee of individual liberty.