- - Tuesday, November 9, 2021

Editor’s note: This is one in a series examining the Constitution and Federalist Papers in today’s America. Click HERE to read the series.

Who gets to interpret what statutory provisions mean in certain circumstances? That question was as pointed and as important during consideration of the Constitution as it is today.

Today, unfortunately, federal laws are interpreted primarily by the very agencies that are responsible for the execution of those laws. In other words, agencies, which are components of the executive branch, also get to act as legislators, filling in the blank spaces and coloring in the monochromatic places in statutory regimes.

This approach is called Chevron deference or the Chevron doctrine, because it was articulated by the Supreme Court in 1984 in Chevron v. NRDC. In that ruling, the high court concluded that the agency responsible for the implementation of statutes is also empowered to interpret those statutes, provided that such interpretations are reasonable and defensible.

Consequently, federal courts now defer to agencies for interpretation of statutes within their expertise.

Is this a problem? Yes, it is.

First, agencies have material conflicts. They will always seek to interpret the laws they implement in ways that expand their authority, power and funding. This problem is most acute with respect to laws in which Congress has ceded an unwise amount of discretion to the agency and its “expertise.” This is especially prevalent in the arena of environmental and energy law, where agencies have shown no ability to restrain their more aggressive impulses and where they routinely seek to expand the limits of statutory construction.

It is no accident that the Chevron case itself was about a change by the Environmental Protection Agency to a permitting provision in the 1977 Clean Air Act.

Recently, for example, the Supreme Court, fully aware of this tendency, said it would hear a case on whether the EPA should even be allowed to proceed to regulate greenhouse gases from existing power plants. This follows the court’s 2016 stay of the Obama administration’s effort to complete similar regulations.

When the Supreme Court is in a mood to give an agency a preemptive shush, it’s plain that something has gone wrong.

Second, the Framers most certainly did not intend for any part of the executive branch to act as legislators. Yet, by filling in the blank spaces in laws, executive branch agencies act precisely as legislators. The Framers also did not intend for any part of the executive branch to act as judges. Yet, by saying what the law is and isn’t, what is acceptable and what is not, executive branch agencies act as judges.

Third, such deference is a de facto transfer of power and authority from the judiciary, which at least has a tangible connection to elected officials (through the nomination and confirmation process), to the unelected and largely unaccountable bureaucracy.

As is often the case, Alexander Hamilton anticipated the problem. In Federalist 78 he noted: “Whoever attentively considers the different departments of power must perceive, that in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. …

“It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution … therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body.”

The good news is that the Supreme Court has started to make sounds that suggest the justices will revisit Chevron. Justice Antonin Scalia, and now Justice Neil M. Gorsuch, have laid judicial predicates to address Chevron deference, as well as noted its constitutional infirmities. Justice Gorsuch has written: “The fact is Chevron and Brand X permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the Framers’ design.”

Justice Gorsuch also has written: “Perhaps allowing agencies rather than courts to declare the law’s meaning bears some advantages, but it also bears its costs. And the founders were wary of those costs, knowing that, when unchecked by independent courts exercising the job of declaring the law’s meaning, executives throughout history had sought to exploit ambiguous laws as license for their own prerogative.”

He’s right.

At some point, the judiciary is going to need to reassert its own prerogatives in interpreting the law and stop pretending that federal agencies are both impartial assessors of the meaning of statutes and adequate substitutes for judges. Let’s hope it is sooner rather than later.

• Thomas Pyle is the president of the American Energy Alliance and the host of The Unregulated podcast.

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