Washington’s armies of lawyers and regulators are waiting anxiously to see how the Supreme Court will resolve two important cases on the future of Chevron deference, the judicial practice of deferring to agency interpretations of ambiguous language in federal statutes.
The message for Congress is already clear. Regardless of whether courts continue their habit of deferring to agencies, Congress needn’t be so polite and in fact it shouldn’t be. Congress can and should assert its rightful place as the lawmaking body, crafting clear laws with specific instructions and firm guardrails for regulators.
Chevron deference is now 40 years old. The case Chevron v. Natural Resources Defense Council, created a two-step process for resolving regulatory questions. At step one, the court looks at whether the statutory language is clear. If so, it stops and gives effect to that language. If the statute is “silent or ambiguous,” then at step two the court stops analyzing the issue and defers to the judgement of the agency that drafted the rule under dispute.
The question of whether the text of a law is ambiguous, and potentially whether courts should continue to give Chevron deference to agencies, is the fulcrum of two cases soon to be decided by the Supreme Court, Loper Bright and Relentless. In both, the analysis turns on whether the Magnuson-Stevens Act clearly provides authority for the National Marine Fisheries Service to require fishing vessels to pay the salaries of official onboard observers. As explained expertly by the petitioners, the statute provides no such authority, yet with the covering of Chevron, regulators assuredly claimed a measure of ambiguity and used it to create their own self-funding mechanism.
Actions like these aren’t rare. Confident that the courts will defer to their judgment, agencies are emboldened to expand the reach of their authority.
Deference is sometimes justified on the grounds of expertise, but these cases present a clear question of law: What legal authority did Congress give to the agency? Interpreting the law is unquestionably within the Article III judicial power, so Chevron ought not prevent the court from doing so.
For its part, Congress should not defer to agencies and the courts to resolve fundamental questions about how the laws of Congress are written. Where it has delegated lawmaking power to the agencies, which in turn is used to write regulations, Congress can articulate clear limits on the use of that power. It can narrow the provision of rulemaking authority on the books. It can address overregulation by narrowing and particularizing the grants of rulemaking authority Congress has previously given to agencies. This task may not be quick or easy, but it is extremely important.
Numerous existing laws and legislative proposals seek to provide back-end fixes to these regulatory challenges. The Congressional Review Act, for example, gives Congress the power to disapprove new rules, and the REINS Act would give Congress additional power over the most economically important new regulations. But those and other measures focus largely on giving Congress tools to address rules after they have been put forward. The questions addressed by Chevron could also be answered with up-front changes to existing laws.
Members of Congress should not regard the Chevron discussion as one primarily for courts, litigators and regulators. This court fight is principally about the core power of Congress. In fact, the first words of the first section of the first article of the U.S. Constitution grant “All legislative Powers” to Congress. Now is the time for Congress to embrace those powers, regardless of how the Supreme Court may change that doctrine in Loper Bright and Relentless.
Anthony P. Campau, who served as chief of staff and counselor for the Office of Information and Regulatory Affairs, is a fellow in regulatory modernization and alignment at the Economic Policy Innovation Center in Washington, D.C.