- When Congress is ambiguous, who decides what they mean?
- Who decided that when Congress is silent, the executive agency decides for them?
- Is this Chevron Deference constitutional?
For decades, Congress has been turning over more and more lawmaking power to the Executive Branch. Frequently this is done by legislation giving the head of some agency or department the power to establish rules which have the force of law. What happens when the legislation doesn’t explicitly say that such-and-such department has the power to make a certain rule? To deal with this, courts have come up with something called “Chevron Deference”. While the case Loper Bright Enterprises, v Gina Raimondo, Secretary Of Commerce deals with who pays the salaries of federal observers on fishing boards, a more fundamental questioning of the court’s deference to government agencies’ interpretation of law is the cornerstone of the petitioner’s arguments.
Let’s start off with a discussion of what is commonly called “Chevron”. This precedent comes from the 1984 case Chevron U.S.A., Inc. v NRDC.
The primary holding of the Chevron case is:
The idea seems simple enough. Government agencies must follow any clear legislative statements when they apply a law, However, if there is an ambiguous situation, the courts will defer to the interpretation of the agency as long as it’s reasonable. After all, you cannot expect any man-made organization to be able to predict every possible permutation of every situation. So it makes sense, if something in a law is ambiguous (capable of being understood in two or more possible senses or ways), somebody has to decide. And technically, there are three possibilities as to who that might be. The courts, the agency, or Congress. Since 1984 the courts have deferred to the agency to make such decisions. As is often the case though, give an agency an inch and they’ll take a mile. Such is true in Loper Bright Enterprises, v Gina Raimondo, Secretary Of Commerce.
The petitioners, Loper Bright Enterprises, et. al., were represented at the Supreme Court by Paul D. Clement. He starts his argument with the specifics of the case.
Congress established by law that domestic fishing vessels had to be monitored to insure they follow the law, but they didn’t specifically say who was to pay for the monitoring. The Department of Commerce decided that since Congress didn’t say they couldn’t make the fishing vessels pay the monitor’s salaries, they had the statutory authority to do so. As you would expect, the petitioners disagreed.
Both the Administrative Procedures Act (APA) and the concept of constitutional avoidance (federal courts should avoid a constitution based decision when a statutory or regulatory one is available) state that the court review the case de novo, or anew, to determine the best understanding of the law. Though that is exactly what Chevron Deference by-passes.
Representing the government is Solicitor General Elizabeth B. Prelogar. She opened her defense with.
While that belief is commonly held, the purpose of Article III courts is not to arbitrarily say what the law is, but to decide controversies based on those laws. Since the specifics of those laws need to be considered when applied to the specifics of any case, there is obviously some interpretation that goes along with the role of a judge. Gen. Prelogar then sets up a straw-man for the court.
First Gen. Prelogar attempts to redirect the question at hand. Petitioners are questioning the deference to the agency when Congress is silent, not when they have explicitly delegated authority to an agency. This is based on two fundamental errors by Gen. Prelogar. First, nothing in the Constitution delegates to Congress the authority to delegate to another the power to “fill in the gaps” in their legislation. Second, neither does the Constitution delegate to the executive branch the authority to fill in those gaps.
Still, there is a more fundamental constitutional flaw in Gen. Prelogar’s argument.
Gen. Prelogar’s straw-man doesn’t show Congress vesting authority to interpret the law, but to apply the law. In her argument, Congress gives the “Administrator” authority to define the term “stationary source”, not to interpret the law whichever way they want. To make matters worse, Gen. Prelogar claims that when Congress does not tell an agency they can do something, that means they have the power to do it. This not only violates the plain language of the Constitution, but places the executive agencies above the very Congress that created it. After all, if any agency can interpret for itself what the law means, their word becomes law. Only after those harmed by such totalitarian rule have spent years and untold dollars pursuing a court case, can they expect any sort of redress of grievance for those agencies’ actions, and then only if the court finds the agencies’ interpretation “unreasonable”. A very fickle standard indeed. Should Congress draft new legislation to restore its intent to the law, we once again would have a long and fraught process, one that does not guarantee that the original intent of the law is applied.
Questions From the Justices
After each attorney presented their case, the justices had a chance to ask them questions.
Here we see Justice Sotomayor using the same sleight of hand that Gen. Prelogar did. Petitioners are not questioning the agencies definition of “reasonableness”, but their actions without ANY statutory language. Remember, the law did not give discretion to the Dept. of Commerce when it comes to who pays the salary for monitors, it was silent on the subject.
It’s not the role of the agencies or the courts to speak for Congress. If Congress did not speak, it did not speak. It’s then up to Congress to decide if it wishes to speak on the matter. What Justice Kagan wants is to subvert the separation of powers and to assume the role of medium in order to divine what Congress wants. Even Congress doesn’t think that’s a good idea.
When the actor you’re claiming to fill in the gaps for, or at least part of that actor, is telling you that you’re wrong, that should pretty much seal the deal. Not for Justice Kagan.
Oh contraire, Ms. Kagan. Chevron is not the creation of Congress, but of the very court you currently sit on. Yes, Congress could have passed a law that more tightly defines who decides ambiguities, and probably should have, but that would certainly take longer than tomorrow. And just what would keep the courts from simply reinterpreting Congress’ intent in the future?
Again, Mr. Clement brings us back to the point. Because of Congressional laziness, even dereliction of duty, they have given up the work of actually writing complete laws, leaving the executive agencies to “fill in the gaps” in their legislation. While that may be the fundamental intent in some cases, it is a violation of the Constitution of the United States. By deferring all decisions to the agencies, the courts too have violated their oaths to support the Constitution.
Did you catch that switch-a-roo? Justice Thomas ask Gen. Prelogar how to tell the difference between delegation and silence, and she switched it to silence and ambiguity.
Justice Thomas’ question has a very simple answer. Delegation is a positive statement “as defined by the Administrator”. Silence is the absence of a statement.
The entire issue of both this case and Chevron comes down to a single question: Is governmental power positively or negatively defined? Does a government actor have to have a positive statement that they can do something, or are they free to act unless there is a specific prohibition? When it comes to the federal government the answer should be clear:
The United States only has the powers delegated to it by the Constitution. Since, as Article I, Section 1 of the Constitution states:
All power for making law (legislative powers) is vested in Congress. They do not have the power to delegate lawmaking power to executive agencies. And since Article III only delegates to the courts judicial power and the power to decide controversies, they do not have the power to “fill gaps” as Gen. Prelogar claims.
Chevron appears to have been an attempt to “keep things going” when Congress was silent or ambiguous on a specific issue. If Congress leaves gaps in their legislation, it’s up to Congress, the representatives of the people and the states, to fill them in. It’s most certainly not within the powers delegated to the executive or judicial branches. We’ll have to wait and see if a majority of the justices on the court recognize the usurpation of powers Chevron Deference has become.
Paul Engel is an Affiliate of Institute on the Constitution. He founded The Constitution Study in 2014 to help everyday Americans read and study the Constitution. Author and speaker, Paul has spent more than 20 years studying and teaching about both the Bible and the U.S. Constitution. Freely admitting that he “learned more about our Constitution from School House Rock than in 12 years of public school” he proves that anyone can be a constitutional scholar. You can find his books on the Institute on the Constitution Store (theamericanview.com), Amazon, and Apple Books. You can also listen to his weekday radio show on America Out Loud (https://americaoutloud.com/the-constitution-study). You can reach him at firstname.lastname@example.org