Yesterday, I promised to discuss an issue on which I strongly disagree with David French. Chevron is that issue.
Allow me to explain.
The Supreme Court is currently hearing a case that’s likely to overturn or eviscerate something called the Chevron Doctrine. That doctrine requires courts to “defer” to an agency’s interpretation of an ambiguous statutory delegation.
For example, Congress might direct the EPA to achieve a certain clean air result, but since few Congressmen have the technical background to tell the EPA just how to achieve that result, experts at the EPA must determine what regulations are needed to reach that goal. The Chevron doctrine requires the courts to “defer” to that agency’s expert determination unless the court finds it unreasonable.
French argues that overturning the doctrine would “rebalance” the division of authority between the branches of government. His argument centers on “democratic accountability” and the fact that Congress is broken.
Congress is not performing its constitutional tasks. It’s a broken institution that contains too few genuine lawmakers and far too many would-be activists and TV pundits. Time and again, it has proved incapable of compromise or of accomplishing even the most basic legislative tasks. It’s been 27 years since it even passed a budget on time. And that barely begins to capture the current level of dysfunction, with a razor-thin House Republican majority consistently held hostage by a mere handful of MAGA extremists.
As Congress has shirked its duties, presidents and the courts have filled the power vacuum. Presidents have used the power of their executive agencies to promulgate new regulations without congressional involvement. Executive agencies publish 3,000 to 4,500 new rules per year, and these regulations have a substantial impact on the American economy. Compounding the problem, courts have ratified that presidential power grab by enacting a series of judge-made rules that require federal courts to defer to the decisions of executive agencies.
The answer to “rebalancing” the power dynamic between Congress and the Executive branch is to fix Congress. It isn’t to require federal judges to substitute their judgments for those of experts on increasingly technical issues.
The current doctrine provides an adequate remedy for instances where agencies have overstepped or acted irresponsibly–“unreasonably.” Jettisoning the doctrine will truly open those storied “floodgates of litigation,” allowing monied business interests to tie up proposed regulations for years and hampering agency operations with overly intrusive reviews.
Chevron deference has served the country well. In his Substack letter, legal scholar Steven Vladick addressed French’s “democratic accountability” argument head on.
A common response to that objection is that a world without Chevron is a world in which those interpretive questions won’t be answered by Congress; they’ll be answered by even less democratically accountable federal judges—who are the real “victims” of Chevron deference. After all, if a statute is ambiguous, the real question Chevron asks is whether the agency or the reviewing court is better situated to resolve the ambiguity. To be sure, some of Chevron’s critics argue that this is a false dichotomy—that the real point is that Congress ought to be forced to be clear in all of its delegations to agencies.
There are somewhere north of 430 federal agencies; even if Congress devoted one calendar day each year to one agency, it wouldn’t get to all of them. Thus, the debate in the typical case is usually going to reduce to a choice between leaving the power to resolve the interpretive dispute to the agency’s reasonable discretion or to the courts. Whatever the pros and cons of the two sides in that debate, it’s clear that the case for the courts in that situation is not about increasing democratic accountability.
Vladick also points out that–with respect to democratic accountability– we vote for the President, who can directly control his subordinates. (Although he does’t mention it, no one votes for federal judges.)
French admits that agencies regulate complex businesses and industries, and that they “possess a level of expertise that’s clearly beyond the capabilities of Congress.” He objects to Chevron’s required deference because, in his opinion, it gives the Executive branch too much power.
It’s an abstract argument for a very non-abstract problem.
Let’s get real: A rule requiring judges to “defer” (not “buckle”) to agency decisions when those regulations pass a “reasonableness” test is absolutely necessary in a world where government agencies deal with increasingly complex, highly technical issues that judges simply lack the expertise to decide.
Experts may get things wrong, but I don’t want Aileen Cannon deciding how many parts of arsenic per million should be allowed in the nation’s waterways, or Matthew J. Kacsmaryk invalidating more FDA regulations.
In a war on knowledge, we’ll all suffer.