The U.S. Supreme Court wrapped-up its 2023-24 term on July 1, leaving in its wake a spate of decisions that have heads still spinning.
The most publicized decision was its affirmation in Trump v. United States that presidents have immunity from criminal prosecution for “official acts.” The court deferred to a designated definer (the lower court trial judge in the Trump case) to determine exactly what that term encompasses. That determination in turn will dictate whether special counsel Jack Smith still has sufficient evidence to prosecute former President Donald Trump in the pending Jan. 6 obstruction case.
Less prominent among the court’s decisions, though still significant, are several opinions affecting various government regulatory agencies and their rulemaking decisions. One case drawing much attention is Loper Bright Enterprises v. Raimondo, in which the court threw out a 40-year old precedent known as the Chevron doctrine.
That doctrine is based on the 1984 Supreme Court decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, in which the justices held that sometimes, courts are required to defer to “permissible” agency interpretations of statutes those agencies administer — even when the reviewing court might read the statute differently.
The Loper case challenged a rule promulgated by the National Marine Fisheries Service in the Commerce Department requiring fishermen to pay for federal at-sea monitors. Chief Justice John Roberts, writing for the majority, declared that the courts “may not defer to an agency interpretation of the law simply because the law is ambiguous.”
In justifying this ruling, Roberts cites not only the courts’ constitutional primacy in interpreting laws, but sources ranging from Alexander Hamilton in Federalist No. 78 to Chief Justice John Marshall in the 1803 case Marbury v. Madison.
But he relies most heavily on provisions of the 1946 Administrative Procedure Act, which governs the process for administrative rulemaking. In Roberts’s words, the act “specifies that the courts, not agencies, will decide ‘all relevant questions of law.’” Agency interpretations of statutes “are not entitled to deference.”
Chevron “has proven fundamentally misguided,” he writes, in part because “agencies have no special competence in resolving statutory ambiguity. Courts do.” Moreover, Chevron has been chipped away at for years by courts, leaving it a mere “husk” of its former self. He notes the court has not encountered a Chevron case since 2016.
Justice Elena Kagan, writing in dissent for the three-justice minority, strongly disagrees with Roberts’s interpretations and conclusions. For one thing, she argues, “This court has long understood Chevron deference to reflect what Congress would want, and so to be rooted in a presumption of legislative intent.”
Contradicting Roberts, she asserts that, on scientific or technical matters, “agencies have expertise in those areas, courts do not.” Moreover, “agencies report to the president, who in turn answers to the public…while courts have no such accountability and no proper basis for making policy.”
In perhaps the biggest slap at the majority, Kagan concludes, “A rule of judicial humility gives way to a rule of judicial hubris…. In one fell swoop, the majority gives itself exclusive power over every open issue…involving the meaning of regulatory law….The majority turns itself into the county’s administrative czar.”
What is the Congress to think and do about this imbroglio between the administrative state and federal judiciary? Republicans in Congress have cheered the decision, whereas the White House has called it a “deeply troubling decision that takes our country backwards.”
A favorite campaign tactic of members of Congress, regardless of party, has been to attack “those unelected bureaucrats” for trying to regulate every aspect of our lives. At the same time, Congress has often avoided enacting detailed rules for administering and enforcing its enactments. It has been content to take credit for its do-good, feel-good laws and leave it to the agencies to fill in the blanks for achieving the laws’ lofty objectives.
If affected constituencies raise Cain about being hamstrung by regulations, Congress plays the blame game and castigates those poor, misguided bureaucrats.
The first step of the Chevron doctrine was that the courts should always first determine if Congress has provided clear lines of intent over areas of potential dispute. If it has, end of case. Only if it has not done so should the courts defer to the agencies to resolve any ambiguities.
One way to avoid disputes is for Congress to be more precise in drafting laws so as not to leave it to others to define its original intent. Congress should no more want to be dominated by an “imperial judiciary” than it already has been by “an imperial presidency.” Loper should be a wakeup call for Congress to restore deliberative lawmaking for the public good.
Don Wolfensberger is a 28-year congressional staff veteran, culminating a chief of staff of the House Rules Committee in 1995. He is author of, “Congress and the People: Deliberative Democracy on Trial” (2000), and, “Changing Cultures in Congress: From Fair Play to Power Plays” (2018).