Editor’s note: This is one in a series examining the Constitution and Federalist Papers in today’s America. Click HERE to read the series.
Who gets to decide what statutory provisions are meant in particular circumstances? This question was just as relevant during the Constitution’s consideration as it is now.
Today, federal laws are often interpreted by the agencies responsible for their execution. This means that agencies, which are part of the executive branch get to act as legislators filling in the empty spaces and coloring in monochromatic areas in the statutory regimes.
This approach is called Chevron deference or the Chevron doctrine, because it was articulated by the Supreme Court in 1984 in Chevron v. NRDC. The high court ruled that the agency responsible to implement statutes was also authorized to interpret them, provided such interpretations are reasonable, justifiable, and legal.
Federal courts now deferring to agencies for interpretations of statutes within their competence.
Is this a problem. It is.
Agencies have material conflicts. They will seek to expand their power, funding, and authority by interpreting the laws they implement. This problem is particularly acute in laws where Congress has given an unwise amount to the agency and its “expertise”. This is especially true in the area of environmental and energy law where agencies have not shown any ability to restrain their more aggressive impulses, and where they regularly seek to expand the boundaries of statutory construction.
It is no accident that the Chevron case itself was about a change by the Environmental Protection Agency to a permitting provision in the 1977 Clean Air Act.
Recently, for instance, the Supreme Court was fully aware of this tendency and said that it would hear a case about whether the EPA should be allowed to regulate greenhouse gasses from power plants. This follows the court’s 2016 stay of the Obama administration’s effort to complete similar regulations.
When the Supreme Court gives an agency a preemptive shush it is clear that something is wrong.
Second. The Framers did not intend that any part of executive branch should act as legislators. However, the executive branch agencies can act as legislators by simply filling in any gaps in laws. It was not intended that any executive branch could act as judges, according to the Framers. Executive branch agencies can act as judges by defining the law and what it isn’t.
Third. This deference is a transfer of power from the judiciary to the unelected, largely unaccountable bureaucracy.
As often happens, Alexander Hamilton predicted the problem. In Federalist 78 he noted: “Whoever attentively considers the different departments of power must perceive, that in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. …
” It is more rational to assume that the courts were created to act as an intermediary between the people, and the legislature, in order to, among other things to, keep them within their limits. The courts are responsible for the interpretation of laws. They have the right to determine the meaning of a constitution… and any act that comes from the legislative body .”
The good news is that the Supreme Court started making sounds that suggested that justices would revisit Chevron. Justice Antonin Scalia and Justice Neil M. Gorsuch have made judicial predicates that address Chevron deference as well as pointed out its constitutional infirmities. Justice Gorsuch wrote: “The fact that Chevron or Brand X allow executive bureaucracies the ability to swallow large amounts of core judicial, legislative power and consolidate federal power in a manner that seems more than a little hard to reconcile with the Constitution of the Framers .”
Justice Gorsuch has also written: “Perhaps allowing agency rather than courts to determine the law’s meaning may have some benefits, but it also bears certain costs.” The founders were aware of these costs and knew that executives have used ambiguous laws throughout history as a license to their prerogative .”
He is right.
At some point, judges will need to assert their prerogatives when interpreting the law. Federal agencies should stop pretending to be impartial interpreters of statutes or substitutes for judges. Let’s all hope that it happens sooner than expected.
Thomas Pyle, president of The American Energy Alliance, is host of The Unregulated podcast.