Via Dan Greenberg
May 25, 2024
Who has the authority to make regulations in the US government? One of the most controversial and important cases before the Supreme Court concerns that important question.
Congress makes rules for the federal government in the form of laws. But federal agencies must enforce the law and often must make their own rules – regulations – to do so. And courts sometimes have to resolve disputes over whether agency regulations are closely based on statutes enacted by Congress.
About 40 years ago, the Supreme Court tried to make things less confusing by laying down some ground rules about who should make those rules. The Supreme Court decided to create a rule of thumb: The court said that if an agency’s rule provides a reasonable interpretation of an unclear statute passed by Congress, it The judge should follow that authority. In other words: If an agency’s regulation is challenged in court, the court will decide whether the agency’s regulation provides a reasonable interpretation of the statute. If the court decides that an agency’s regulation is reasonable, then the agency’s regulation – even if challenged in court – always wins.
Perhaps the architects of Chevron The principle is that this is a good way to reduce conflicts between different parts of government. Unfortunately, that solution has created a new problem: a host of new federal rulemaking mechanisms that make it increasingly difficult for citizens to challenge in court.
Critics Chevron principles — including several justices currently sitting on the Supreme Court — have noted that it appears to have a strange and disturbing consequence: Namely, that in some cases, the it is the agency, not the court, that makes the final decision when interpreting the law.
Earlier this year, the Supreme Court heard Loper Bright Enterprises v. Raimondo case, a lawsuit is inevitable Chevron outstanding principle. The Bright Loper Parties challenged the regulation requiring professional fishermen to pay government observers who were required to monitor commercial fishing vessels. It’s not hard to see why the lawsuit was brought: Imagine if some day some federal official told you that, from now on, not only will there be a new person in the workplace Your boss will monitor you to make sure you’re doing your job right, but you’ll also have to pay him! (CEI filed an amicus brief with the Supreme Court in this case.)
There is no statute that explicitly requires fishermen to pay their own federal monitors. However, agency regulations (supposedly based on statute) require this payment. Whatever is going on here, it seems the agency has no explanation; instead, it appears that the body is acting as an additional legislative body. In short, this case involves two questions: first, whether the regulation actually flows from statute, and second, whether Chevron prevents the court from considering the first question.
Those who observed the oral debate gave Bright Loper a few months ago there was good reason to believe that Chevron is in the court’s sights. At the debate, Justice Brett Kavanaugh observed that Chevron “causing shocks to the system every four or eight years with a new administration,” regularly bringing “major changes” to regulations. That’s because there are so many agencies that take input from whoever is president and implement policies they believe the boss will like.
Justice Neil Gorsuch then noted that Chevron also allows agencies to incorporate the organization’s private interests into their own regulations. For example, when agencies must deal with benefits for veterans or Social Security claimants, Chevron encourage agencies to make regulations that benefit the agency but operate at the expense of the “little guy” – because there is a risk that the agency will interpret the statute in a way that makes it difficult for regulators to becomes as easy as possible.
At the conclusion of oral arguments, one of the attorneys before the court suggested that Chevron rules cannot be limited or modified; Rather, he said, the court should “recognize that the underlying issue is Chevron itself.” It is safe to say that in the coming weeks a majority of the justices will agree – and decide that it is time once again for the courts to exercise their traditional function of interpreting the law.
This article was originally published by RealClearPolitics and is available via RealClearWire.
Editor’s note: If Chevron is struck down, the implications for the EPA, DOE, a host of other agencies and the Biden administration’s climate agenda would be huge. Hundreds, if not thousands, of regulations and programs would be at risk.
Related
