A message for Congress in the Supreme Court’s reconsideration of Chevron deference
Washington’s armies of lawyers and regulators are waiting anxiously to see how the Supreme Court will resolve two important cases on the future of Chevron deference, the judicial practice of deferring to agency interpretations of ambiguous language in federal statutes.
The message for Congress is already clear. Regardless of whether courts continue their habit of deferring to agencies, Congress needn’t be so polite and in fact it shouldn’t be. Congress can and should assert its rightful place as the lawmaking body, crafting clear laws with specific instructions and firm guardrails for regulators.
Chevron deference is now 40 years old. The case Chevron v. Natural Resources Defense Council, created a two-step process for resolving regulatory questions. At step one, the court looks at whether the statutory language is clear. If so, it stops and gives effect to that language. If the statute is “silent or ambiguous,” then at step two the court stops analyzing the issue and defers to the judgement of the agency that drafted the rule under dispute.
The question of whether the text of a law is ambiguous, and potentially whether courts should continue to give Chevron deference to agencies, is the fulcrum of two cases soon to be decided by the Supreme Court, Loper Bright and Relentless. In both, the analysis turns on whether the Magnuson-Stevens Act clearly provides authority for the National Marine Fisheries Service to require fishing vessels to pay the salaries of official onboard observers. As explained expertly by the petitioners, the statute provides no such authority, yet with the covering of Chevron, regulators assuredly claimed a measure of ambiguity and used it to create their own self-funding mechanism.
Actions like these aren’t rare. Confident that the courts will defer to their judgment, agencies are emboldened to expand the reach of their authority.
Deference is sometimes justified on the grounds of expertise, but these cases present a clear question of law: What legal authority did Congress give to the agency? Interpreting the law is unquestionably within the Article III judicial power, so Chevron ought not prevent the court from doing so.
For its part, Congress should not defer to agencies and the courts to resolve fundamental questions about how the laws of Congress are written. Where it has delegated lawmaking power to the agencies, which in turn is used to write regulations, Congress can articulate clear limits on the use of that power. It can narrow the provision of rulemaking authority on the books. It can address overregulation by narrowing and particularizing the grants of rulemaking authority Congress has previously given to agencies. This task may not be quick or easy, but it is extremely important.
Numerous existing laws and legislative proposals seek to provide back-end fixes to these regulatory challenges. The Congressional Review Act, for example, gives Congress the power to disapprove new rules, and the REINS Act would give Congress additional power over the most economically important new regulations. But those and other measures focus largely on giving Congress tools to address rules after they have been put forward. The questions addressed by Chevron could also be answered with up-front changes to existing laws.
Members of Congress should not regard the Chevron discussion as one primarily for courts, litigators and regulators. This court fight is principally about the core power of Congress. In fact, the first words of the first section of the first article of the U.S. Constitution grant “All legislative Powers” to Congress. Now is the time for Congress to embrace those powers, regardless of how the Supreme Court may change that doctrine in Loper Bright and Relentless.
Anthony P. Campau, who served as chief of staff and counselor for the Office of Information and Regulatory Affairs, is a fellow in regulatory modernization and alignment at the Economic Policy Innovation Center in Washington, D.C.
Date: |
Filter
-
Biden urges Congress to ban bump stocks after Supreme Court ruling
President Biden is urging Congress to ban bump stocks, an accessory that can increase the rate of fire of semi-automatic weapons, after the Supreme Court struck down a ban put in place by former President Donald Trump after the 2017 country ...CBS News - Top stories - Joe Biden -
Alito: Congress can act on bump stocks after Supreme Court lifts Trump-era ban
Justice Samuel Alito on Friday asserted that Congress could amend the law to successfully ban bump stocks in an opinion concurring with the Supreme Court's decision Friday to invalidate a Trump-era ban on the devices. The ban on bump stocks, which ...The Hill - Politics - Donald Trump -
Major Supreme Court Rulings, and Counterfeit Titanium in Planes
Plus, New York targets rogue smoke shops.The New York Times - Top stories -
The Supreme Court’s Bump Stock Decision Will Prove Fatal
Machine guns on the street are now legal again.The New York Times - Top stories -
The Supreme Court's Notable Cases of the 2023-24 Term
Justices are addressing issues on Trump, abortion, guns, homelessness and federal regulatory power.The Wall Street Journal - World -
Breaking down Supreme Court's bump stocks ruling
In a 6-3 ruling, the Supreme Court invalidated a Trump-era ban on bump stocks, accessories for semiautomatic rifles that increases the rate of fire. CBS News chief legal correspondent Jan Crawford reports.CBS News - Top stories -
The Supreme Court's Welcome Bump Stock Ruling
The Justices say ATF let Congress off the hook on a gun regulation.The Wall Street Journal - World -
The Supreme Court Rejected the Ban on Bump Stocks
Plus, advice for dads, from dads.The New York Times - Top stories -
Supreme Court overturns ban on bump stocks
In a 6-3 decision Friday, the Supreme Court overturned a Trump-era ban on bump stocks, devices which allow semiautomatic rifles to fire hundreds of bullets a minute. In 2018, then-President Donald Trump issued an executive order banning bump ...CBS News - Top stories -
Supreme Court upholds rejection of "Trump Too Small" trademark
The Supreme Court on Thursday ruled that U.S. Patent and Trademark Office didn't violate the First Amendment when it refused to register a trademark for the phrase "Trump Too Small."CBS News - Politics - Donald Trump
More from The Hill
-
Crockett calls Thomas 'corrupt' after Supreme Court decision to upend bump stocks ban
Rep. Jasmine Crockett (D-Texas) slammed Supreme Court Justice Clarence Thomas as “corrupt” during an interview with MSNBC on the court’s recent decision to overturn a Trump-era bump stock ban. Thomas has come under increasing scrutiny for gifts he ...The Hill - Politics -
Eyeing Trump presidency, conservatives want to delay funding fight
Bullish of former President Trump’s chances of winning back the White House in November, some conservatives are pitching a funding stopgap that would extend into next year rather than expire during a lame duck session when President Biden would ...The Hill - Politics - Donald Trump -
Iran and Sweden to swap prisoners, including convicted war criminal
Iran agreed Saturday to release two Swedish nationals held in Tehran for over two years in exchange for a convicted Iranian war criminal tied to the 1988 mass killing of protestors critical of the Islamic Republic in the capital city. While ...The Hill - Politics - Iran -
Raskin hits Republicans for bowing to 'sugar daddy' Trump after Capitol visit
Rep. Jamie Raskin (D-Md.) criticized his Republican colleagues in Congress Saturday after they met with former President Trump in closed-door meetings earlier this week, calling the positivity around the visit "a scandal and a disgrace." The ...The Hill - Politics - Donald Trump -
Sunday shows preview: Trump sells GOP unity with Capitol visit
Former President Trump made an appearance on Capitol Hill this week, attempting to rally Republican lawmakers during his first time meeting with Congress since the Jan. 6, 2021 riots. Several of his most loyal supporters will make appearances on ...The Hill - Politics - Donald Trump