Editor’s Note: This is part of a series examining the Constitution and Federalist documents in America today. Click here to read the series.
Who can interpret what the legislative provisions mean in certain circumstances? This question was as pointed and as important during the examination of the Constitution as it is today.
Today, unfortunately, federal laws are interpreted primarily by the very agencies that are responsible for enforcing those laws. In other words, agencies, which are components of the executive branch, can also act as legislators, filling in the blanks and coloring the monochromatic places in legislative regimes.
This approach is called Chevron deference or the Chevron doctrine because it was articulated by the Supreme Court in 1984 in Chevron v. NRDC. In this decision, the High Court found that the law enforcement agency is also empowered to interpret such laws, provided that such interpretations are reasonable and defensible.
As a result, federal courts now defer to agencies to interpret laws within their jurisdiction.
Is it a problem? Yes it is.
First, agencies have material conflicts. They will always seek to interpret the laws they implement in ways that extend their authority, power and funding. This problem is more acute with respect to laws in which Congress ceded reckless discretion to the agency and its “expertise.” This is particularly prevalent in the area of environmental and energy law, where agencies have shown no ability to restrain their more aggressive impulses and where they regularly seek to push the boundaries of legislative construction.
It is no coincidence that the Chevron case itself involved an amendment by the Environmental Protection Agency to a permitting provision in the Clean Air Act of 1977.
Recently, for example, the Supreme Court, fully aware of this trend, said it would hear a case on whether the EPA should even be allowed to proceed with greenhouse gas regulation of power plants. existing. This follows the court’s 2016 suspension of the Obama administration’s efforts to complete similar regulations.
When the Supreme Court is in the mood to give an agency a preemptive silence, it’s clear that something has gone wrong.
Second, the drafters certainly did not intend for any part of the executive branch to act as legislators. Yet, by filling in the gaps in laws, executive branch agencies act precisely as legislators. Nor did the drafters intend for any part of the executive branch to act as judges. Yet, in saying what the law is and what it is not, what is acceptable and what is not, the executive branches act as judges.
Third, such deference is a de facto transfer of power and authority from the judiciary, which has at least a tangible connection to the elected (through the nomination and confirmation process), to the unelected bureaucracy and largely irresponsible.
As often, Alexander Hamilton anticipated the problem. In Federalist 78 he noted: “Anyone who carefully considers the different departments of power must find that in a government where they are separated from each other, the judiciary, by the nature of its functions, will always be the least dangerous for politics. constitutional rights; because he will be least able to annoy or hurt them. …
“It is much more rational to suppose that the courts were designed to be an intermediary body between the people and the legislative power, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of laws is the proper and particular domain of the courts. A constitution … therefore belongs to them to determine its meaning as well as the meaning of any particular act emanating from the legislative body.
The good news is that the Supreme Court has started making sounds suggesting that the justices will return to Chevron. Judge Antonin Scalia, and now Judge Neil M. Gorsuch, laid down judicial predicates to address Chevron’s deference, as noted his constitutional infirmities. Justice Gorsuch wrote, “The fact is that Chevron and the X brand allow executive bureaucracies to swallow huge amounts of basic judicial and legislative power and to concentrate federal power in a way that seems more than a little difficult to reconcile with the framers’ conception of the Constitution. .”
Judge Gorsuch also wrote: “Perhaps allowing agencies rather than courts to declare the meaning of the law has some benefits, but it also bears the costs. And the Founders were wary of these costs, knowing that when unchecked by independent tribunals performing the job of declaring the meaning of the law, rulers throughout history had sought to exploit ambiguous laws like license for their own prerogative.
He is right.
At some point, the judiciary will have to reassert its own prerogatives in interpreting the law and stop claiming that federal agencies are both impartial evaluators of the meaning of laws and adequate substitutes for judges. Hopefully it will be as soon as possible.
• Thomas Pyle is President of the American Energy Alliance and host of The Unregulated podcast.