When ‘Law Runs Out,’ the Government Runs Out

National Review Online

Thursday, January 18, 2024

 

The Supreme Court heard arguments Wednesday morning in two cases to decide whether to overrule the Chevron doctrine. It should do so.

 

The rule adopted in the 1984 Chevron case was a well-intentioned effort to free the executive branch from judicial micromanagement. Specifically, the Court was then concerned to prevent activist liberal judges from preventing new administrations from changing their policies in a deregulatory direction. There are, in fact, always some policy questions left by Congress to the executive’s discretion. But Chevron proved a cure worse than the disease.

 

Chevron claimed for agencies the power to change how the courts interpret the meaning of laws passed by Congress. Under Chevron, where a statute is “ambiguous,” courts defer to the agency’s interpretation — even if the agency had a different interpretation under the last president. As Justice John Paul Stevens wrote then, a court applying Chevron “need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding.”

 

That deference is a dereliction of the power of courts to do what Chief Justice John Marshall defined as their central role: “to say what the law is.” A statute that means one thing when it is passed by Congress does not mean another thing after an agency interprets it, and a third thing when the agency reinterprets it under a different president. Defenders of Chevron say that it would unsettle precedent and violate the doctrine of stare decisis to overrule the decision, but Chevron itself unsettles both precedents and the expectations of regulated parties by allowing agencies to flip-flop in how they read the law without going through Congress to change it.

 

The two cases heard Wednesday, Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, were brought by herring fishermen whose budgets were strained by intrusive regulation. Congress authorized the secretary of commerce and the National Marine Fisheries Service to “require that one or more observers be carried on board a vessel . . . for the purpose of collecting data necessary for the conservation and management of the fishery” — for example, to prevent overfishing.

 

The problem: The agency (the NMFS) ran short on its budget to hire observers. It could have asked Congress for more money, or for the power to make the fishermen pay for their own regulation. It did neither. The statute never said anything about the NMFS having the power to compel the fishermen to pay the costs of the observers. Imposing that cost is a further exercise of government power, above and beyond compelling the vessels to carry the observer. When pressed at argument to identify the government’s authority, Solicitor General Elizabeth Prelogar argued for a chain of inferences from four separate parts of the statute, none of them close to an explicit grant of that power. Yet, lower courts used Chevron to say that because the statute never says who pays for the observers, it is ambiguous, and they deferred to the agency when it claimed that power. As Justice Neil Gorsuch put it, this is a rule under which “the government always wins” against the individual citizen or business.

 

Defending Chevron, Justice Elena Kagan said that agency power to decide such questions must step in when “law runs out.” Prelogar picked up that theme throughout the argument. Otherwise, Kagan and Prelogar feared, agencies would lack the power to deal with questions Congress failed to consider when writing the statute. But that is not how our rule-of-law system was designed. We have a government of enumerated powers. When Congress has not empowered an agency to do something — when it has not given it law to enforce — the correct answer should be that the agency does not have that power. As Paul Clement put it in arguing for one of the fishermen, when the law doesn’t give an answer, “give the tie to the citizen.”

 

The sky will not fall without Chevron. Federal administrative law under the modern Administrative Procedure Act was around for 40 years before Chevron, and many states have abolished the doctrine and done just fine without it. The better solution to the activist-judicial overreach of the 1970s is simply for courts to stay in their own lane, and apply laws as written. The courts have grown much more rigorous in doing so since the mid 1980s, under the influence of Justice Antonin Scalia’s advocacy for textualism. Scalia himself, once a supporter of Chevron, grew more skeptical as he saw in practice how it interfered with the project of reading law as it was written by the people’s representatives.

 

Our system of checks and balances assumes that, when the two houses of Congress and the president cannot agree, nothing will happen. Then, in turn, when nothing happens, either gridlock will bring all sides to the bargaining table, or power to deal with the issue will remain with the states, or with the people. Allowing agencies to step in when the law falls silent short-circuits that process. As Clement noted, using the example of the Securities and Exchange Commission claiming authority over cryptocurrency regulation, that produces more gridlock rather than less: Why should Congress do the hard and sometimes unpopular work of legislating when agency heads claim that old, vague language gives them all the power they need?

 

Presidents are not kings; they rule under laws written by Congress. The same is true of agencies, whether or not they are under direct presidential control. It is much in fashion to fret about dictatorial powers in the presidency. The defining feature of dictators is that they dictate: They say what the law allows them to do, rather than being told what it empowers. One of the best checks we know on dictatorial power is to demand that the executive have only those domestic powers written for them by Congress, under laws read by the courts. Overturning Chevron will restore a critical aspect of that balance — and not a moment too soon.