As I write this, we await the Supreme Court's ruling on the so-called Chevron deference (or doctrine). It concerns the power of federal agencies to interpret laws and promulgate them into regulations that affect nearly every American in one way or another. It's not sexy, but it could end up being the most significant case the court will rule on this year—maybe in any year.
Chevron deference allows the courts, through a two-step process, to defer to "reasonable" administrative agency interpretations if a federal statute is unclear or ambiguous. It paves the way for agency hacks to, in essence, make laws under the guise of rulemaking. It gives federal agencies (and the president in power) broad authority to regulate everything from health care to immigration to women's sports to COVID jabs.
The high court consolidated two cases—Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce—and heard oral arguments in January of this year.
Both cases concern the National Marine Fisheries Services (NMFS) interpretation of a federal fishing law (George W. Bush's Magnuson-Stevens Act) requiring government monitors to accompany certain fishing boats. At issue: Who would pay for the monitors—the agency requiring them or the fishermen themselves? The statute is unclear on that point, and using the Chevron deference, the lower court ruled that the NMFS had the right to require the fishermen to pay for the $700-a-day monitors on trips that often last several days.
Meghan Bartels at Scientific American warned this week that modifying Chevron would "Make It Harder for Government Agencies to Use Good Science."
Good (government) science! Follow the (government) science! Where have we heard that before? She lamented that reeling in Chevron threatens "scientific expertise."
Judicial deference to agencies’ expertise is crucial to how U.S. medical and environmental regulation, in particular, currently works. For example, the FDA currently uses its discretion to loosen approval requirements for treatments of rare diseases, such as by permitting historical records to substitute for a control group in a clinical trial, says Reshma Ramachandran, an assistant professor at the Yale School of Medicine, who has a background in public policy. And the agency’s ability to regulate new products—such as vaping systems and genetic tests marketed directly to consumers—can rely on the ambiguity in terms such as “medical devices” in legislation from Congress.
Ramachandran worries that if Chevron deference falls, the FDA will become more cautious out of fear of being taken to court and losing. “I think the government agencies are just going to be much more hesitant to follow the science and instead might make decisions based on the political and legal landscape,” she says. New treatments might take longer to be approved, and on the other end of the spectrum, people could be exposed to dangerous or misleading products that were able to evade regulation, she worries.
Doniger cites the EPA’s regulation of carbon emissions as pollutants and OSHA regulations that targeted the spread of COVID in workplaces early in the pandemic as examples of the sort of situation in which Chevron deference can allow agencies to take the lead on topics that are firmly within their territory but about which Congress has yet to create detailed legislation.
Make no mistake: Public bureaucrats are terrified that Chevron could "fall" and curtail the immense power they now hold. Amy Howe, writing at SCOTUSblog, describes the oral arguments in the two cases that could decide the fate of Chevron:
The court’s three liberal justices expressed support for keeping the doctrine in place. Justice Elena Kagan repeatedly suggested that federal agencies, with their scientific and technical expertise, are better suited than courts to resolve ambiguities in a federal statute...
...Justice Sonia Sotomayor agreed with Kagan. She doubted whether there can be a “best” interpretation of a law when the justices “routinely disagree” about a law’s meaning. The real question, she said, is who makes the choice about what an ambiguous law means. And if the court needs a “tie-breaker,” she continued, why shouldn’t it defer to the agency, with its expertise?
Justice Ketanji Brown Jackson posited that the Chevron doctrine serves an important purpose. Under Chevron, she suggested, Congress gives federal agencies the power to make policy choices – such as filling gaps or defining terms in the statute. But if Chevron is overturned and agencies no longer have that power, she predicted, then courts will have to make those kinds of policy decisions. [Emphasis added]
Understand that this is all about power and who should have it. To be fair, both sides have used federal agencies and Chevron deference to advance policies they can't get through Congress. It makes a mockery of the separation of powers established in the Constitution, but it works—for as long as a president is in office. Every time there is a new president, all the little hamsters in the federal agencies go to work changing the rules.
Justice Brett Kavanaugh pointed out in oral arguments that Chevron “ushers in shocks to the system every four or eight years when a new administration comes in” resulting in "massive change” to a wide range of policies.
Bureaucrats and lawyers will argue that striking down Chevron would send federal agencies into a tailspin and sideline the "experts" who are tasked with interpreting the 200,000+ pages of the Federal Register. The question they—and all of us—should be asking is why there are so many federal regulations. Fewer federal regulations would mean fewer federal bureaucrats lording it over regular Americans—those of us who can't afford to hire a team of lawyers whenever we change the oil in our cars or make healthcare decisions.
Yes, if Chevron "falls," there will likely be a blizzard of lawsuits that could paralyze the court systems. But the answer isn't to continue to empower the federal government. The answer is to reduce the size of government, reduce the size of the Federal Register, and disempower the "experts" who write all those rules. Maybe a Chevron blizzard—a crisis, if you will—could be the impetus Congress needs to roll back federal regulations and send issues back to state and local governments—or families—where they rightly belong. I'm not going to get my hopes up, but you never know.
Stay tuned to PJ Media. We will bring you the ruling (and other important ones expected this week or next) as soon as it's published.
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