Have federal agencies been given too much power and leniency by federal courts to write policy?

In a 1984 case dealing with air quality standards set by the Environmental Protection Agency, the Supreme Court ruled that any federal agency rule or regulation should be upheld as constitutional if it was deemed “reasonable” and if Congress hadn’t legislated on the precise issue at question.

The practice which emerged in the subsequent decades has been nicknamed “the Chevron deference,” in which courts usually defer to an inherent presumption of constitutionality regarding federal regulations. This made it far harder, though not impossible, for courts to strike down rules or regulations set by federal agencies as unconstitutional.

Thousands of federal regulations have been issued by agencies ever since, most prominently from the EPA, Education Department, and Department of Health and Human Services. Although it usually makes news when a federal regulation is struck down as unconstitutional, most such regulations have actually been upheld — in no small part because of the Chevron defense.

Although the decision became much more controversial in the subsequent decades, the case Chevron Inc. v. Natural Resources Defense Council was actually a unanimous 6–0 decision at the time. (Three justices did not participate.) Although several of the current conservative justices have criticized the 1984 decision, “There do not appear to be five votes to jettison Chevron just yet,” Daniel Hemel wrote for SCOTUSblog.
What the legislation does

The Separation of Powers Restoration Act would essentially overturn the main ruling in the 1984 Chevron decision, amending federal law to end the practice of courts presuming a federal regulation’s constitutionality.

The bill’s exact text reads: “The court shall not interpret [a] gap or ambiguity as an implicit delegation to the agency of legislative rule making authority, and shall not rely on such gap or ambiguity as a justification either for interpreting agency authority expansively or for deferring to the agency’s interpretation on the question of law.”

The House version was introduced on March 27 as bill number H.R. 1927, by Rep. John Ratcliffe (R-TX4). The Senate version was introduced the same day as bill number S. 909, by Sen. Ben Sasse (R-NE).
What supporters say

Supporters argue the legislation swings the pendulum back towards the system ostensibly laid out by the Constitution, in which Congress writes the laws rather than an unelected bureaucracy.

“This bill is about Schoolhouse Rock basics,” Sen. Sasse said in a press release. “Congress writes the laws, the Executive Branch enforces them, and the courts resolve cases and controversies. That basic system has been turned upside-down: Unelected bureaucrats that nobody can fire write an avalanche of regulations, and the courts just trust them to interpret the limits of the law and even their own regulations. This bill tries to restore some accountability by making sure that judges don’t automatically defer to Washington’s alphabet soup of bureaucracies.”

“The regulatory state in our country has spiraled out of control,” Rep. Ratcliffe said in the same press release.“By usurping the constitutional powers granted to the Judicial Branch, unelected bureaucrats have effectively formulated their own ‘Fourth Branch’ of government, implementing countless rules and regulations — that hold the force of law — without accountability to the American people. This problem has gotten worse over the past few decades thanks to the current precedent that courts should, in many cases, defer to agencies’ interpretation of federal laws and even the regulations that they author, if deemed ‘ambiguous.’”
What opponents say

To see what opponents would counter, it’s worth examining the 1984 original judicial rationale for establishing the Chevron deference in the first place. The Supreme Court majority opinion argued that executive branch agencies, even though staffed by unelected employees, were nonetheless more accountable to the people — by being led by the elected president — than courts are. Thus, courts should refrain from striking down agency regulations as unconstitutional unless absolutely unavoidable.

“Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges’ personal policy preferences,” Justice John Paul Stevens wrote for the Court. “In contrast, an agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration’s views of wise policy to inform its judgments.”

“While agencies are not directly accountable to the people, the Chief Executive is,” Stevens continued. “And it is entirely appropriate for this political branch of the Government to make such policy choices — resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities.”

“In such a case, federal judges — who have no constituency — have a duty to respect legitimate policy choices made by those who do.”
Odds of passage

In 2017, the Republican-led House passed the Regulatory Accountability Act of 2017 by a 238–183 vote. Title II of that legislation specified essentially the same policy goal of overturning the Chevron case. The Senate never took the bill up, despite being led by Republicans as well.

All voting House Republicans were in favor, 233–0. Democrats overwhelmingly opposed, 5–183. The five House Democrats in favor were Reps. Jim Costa (D-CA16), Henry Cuellar (D-TX28), Stephanie Murphy (D-FL7), Collin Peterson (D-MN7), and Kurt Schrader (D-OR5).

The current House version has 20 cosponsors, all Republicans. It awaits a potential vote in the House Judiciary Committee, with passage unlikely because of the chamber’s Democratic control.

The Senate version has 12 cosponsors, all Republicans. It awaits a potential vote in the Senate Judiciary Committee, which is more likely.

This article was written by GovTrack Insider staff writer Jesse Rifkin.

Source: GovTrack Insider

John Stewart
Editor, OutdoorWire.com
Vice President, BlueRibbon Coalition