Last Thursday, the presidential debate caused many to bemoan the lack of quality candidates. The next morning, the Supreme Court stripped the executive branch of much of its interpretive power by overturning the Chevron doctrine—rightly restoring much of that power to Congress. Americans unhappy with their presidential options should rejoice.
The Chevron doctrine affords federal agencies significant freedom to interpret statutes and make regulations. In a 6-3 Supreme Court ruling, announced shortly after the legal doctrine’s 40th anniversary, that mistake was rectified—but it also was not unexpected.
Supreme Court Justice Brett Kavanagh had previously observed that Chevron “ushers in shocks to the system every four or eight years when a new administration comes in,” and generates unnecessary confusion and unpredictability. Since January, many experts have expected the Supreme Court to overturn or greatly unwind its landmark 1984 decision, which established a two-part test for determining the level of deference the courts must afford to federal agencies when interpreting statutes.
This simple test was intended to narrowly deal with the specifics of the Clean Air Act’s implementation—not “remake administrative law” or make a “change to existing doctrine on judicial review of agency action.” Instead, federal agencies have butchered Chevron’s intent to push the boundaries of their regulatory missions. Those agencies have won 77 percent of the cases in which the test is applied.
The result has emboldened Congress to over-delegate its legislative responsibility of clear and concise lawmaking to unelected bureaucrats that promulgate thousands of new rules and regulations every year. That’s bad for the rule of law, bad for economic growth, bad for immigrants and low-income entrepreneurs, and ultimately bad for American consumers who must pay for this indiscretion through higher prices.
Fortunately, during oral arguments for Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce – both cases dealing with whether the National Marine Fisheries Service (NMFS) should be allowed to compel herring fishermen to pay for private observers to inspect their ships – a majority of justices appeared not only skeptical of the NMFS’s claims but also of constitutional merits of Chevron itself.
The Supreme Court acted upon this skepticism in last week’s groundbreaking ruling, which tossed the Chevron test in its entirety.
For too long, Chevron has made Congress lazy and complacent. Lawmakers frequently write vague statutes that leave federal agencies with the difficult task of determining how those statutes should be enforced. Similarly, federal courts have deferred to agency expertise and interpretation of rules that Congress should have made clear from the very beginning.
Congress must now begin the difficult process of reclaiming the power that it foolishly over-delegated the last few decades. This process will not be easy. Lawmakers must now rediscover the art of reading the legislation they introduce. They will also have to be more intentional about drafting legislation in a way that is clearer and more concise—and does not risk lawsuits.
To handle its increased workload, some lawmakers have speculated that Congress may need to amend its arbitrary 18 staff members maximum in the House and staff up both chambers. Other commentators have suggested creating a new regulatory agency to help lawmakers craft more precise statutes and provide greater oversight of federal agencies. Those actions may or may not be necessary. Regardless, Congress should immediately pump the breaks on new regulations they are unprepared to defend in court.
All branches of government should treat Chevron’s demise as an opportunity to refocus, improve operations, and act in the best interest of all Americans. That will help restore public trust in government and alleviate some of the regulatory burden imposed by poorly thought-out legislation.
As Congress debates new steps, Americans across the country should relish that the presidential election matters less today than it did last week.
