- - Thursday, June 9, 2016

ANALYSIS/OPINION:

It is a bedrock principle of America’s founding: Congress, as elected by the people, shall write all laws that govern the United States. Yet while that principle remains on paper, it has eroded today to a degree likely unrecognizable by the Founding Fathers. In what has come to be known as “Chevron deference” — a reference to a 1984 Supreme Court case — the federal government has found a powerful tool for expanding the size and reach of government to a scope never intended. And perhaps more importantly, it is a factor contributing to the congressional gridlock so many Americans bemoan today.

Chevron deference is a judicial doctrine established by the Supreme Court in its 1984 opinion, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. It requires judicial deference to federal agency interpretations of statutory ambiguity or gaps, so long as such interpretations are reasonable. What’s “reasonable” is left to the prerogative of federal agencies, which are mostly run by partisan appointees.

The result is legislation being exploited years or decades later by overzealous federal agencies for partisan ends. See, for example, the Environmental Protection Agency’s (EPA) Clean Power Plan, which relies on a novel interpretation of the Clean Air Act to permit regulating emissions “outside the fence” of individual power plants. More than two-dozen states are now challenging the rule as unconstitutional, with Chevron deference expected to play a key role in the EPA’s case before the U.S. Court of Appeals for the District of Columbia Circuit in the fall, and likely the Supreme Court next year.

It might seem obvious that allowing federal agencies to decide for themselves how to interpret laws will lead to their growth. This is reason enough for the Supreme Court to reconsider the scope of its Chevron doctrine. Less obvious, though, is how restoring the traditional role of the judiciary to interpret legislation passed by Congress could provide the appropriate checks and balances necessary to break congressional gridlock.

This debate couldn’t occur at a more important time. The job approval rating of Congress is at a dismal 11 percent. Americans think so poorly of Congress principally because it is not acting as a representative legislature. Largely overlooked, however, is how Chevron deference has contributed to this impasse.

By not passing well-drafted legislation, Congress enables the executive branch to fill the void by interpreting ambiguous laws in a way that fits its agenda. But by ceding the executive branch so much authority, de facto, to create laws of its own, the judicially created Chevron doctrine allows executive overreach to go unchecked.

This undermines our tripartite system of checks and balances among the legislative, executive and judicial branches of government, which only works if there is constant and equivalent tension among the three branches. The lawmaking function of Congress works best when it, not the executive branch, holds itself responsible to the public for the enactment and clarity of laws. To do otherwise is for Congress to cede some of its constitutional responsibilities to the president, thus weakening the tension that is necessary to compel congressional action.

Congress should have the incentive of robust judicial oversight of administrative interpretations to statutory ambiguities or gaps. After all, it is Congress that writes the laws; lawmakers should want them interpreted and applied in a fair and consistent manner. The availability of judicial review is what makes the lawmaking process effective.

We see the costs of the current system all around us today. Republican congressional leaders are often caught in a Catch-22 situation. If they pass more precisely worded legislation that is consistent with constituent interests, it may be vetoed by the president. If they pass compromise legislation with more ambiguous language, it may be signed into law, then “authoritatively” interpreted by agencies with a political agenda of their own.

To be clear, the problem of excessive judicial deference is not one of congressional making, nor is a legislative solution the sole method to restore balance to the separation of powers. The Supreme Court should address the imbalance that it helped create, given the scholarly consensus that it did not intend to cause a major shift in judicial deference doctrine. The Supreme Court can help restore the rightful places of Congress and the judiciary as coequal branches of government by reversing or revising the Chevron doctrine.

Chief Justice John Roberts famously stated in his Senate confirmation proceedings: “My job is to call balls and strikes and not to pitch or bat.” Applying this analogy to administrative law, Congress is the pitcher, the executive branch, the batter, and the Supreme Court, the umpire. The Chevron doctrine inappropriately cedes the umpire’s role to the batter. That is the type of unfair insider baseball that causes the pitcher to stay in the dugout, undermining the American system of government.

Alfred J. Lechner Jr. is a former judge of the U.S. District Court for the District of New Jersey, and president and CEO of the Cause of Action Institute.

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