At a recent Cato Institute conference, Elon Musk spoke about “regulatory gridlock,” and a system in which “It’s basically illegal to build big projects.” He called for sunsetting numerous (unspecified) regulations, then concluded with this gem: “Every regulation should be accompanied by the name of the person primarily responsible for it.” It reminded me of a phone call Senator Bill Armstrong’s chief of staff, Howard Propst, once made to a federal agency, in which he thundered, “I want to know the name of the guy who decided that!”
They wouldn’t tell him the name, prompting at least one legislative amendment requiring all government letters to be signed. It was a process issue, not about the merits of decisions being made, but about who had the authority to make them. Less than a year later in 1984, the U.S. Supreme Court dealt a significant blow to such efforts to hold agencies accountable, in a case called Chevron v. Natural Resources Defense Council.
That case involved a new EPA rule changing the definition of “stationary sources” of air pollution under the Clean Air Act. Congress had never defined that term, leading to disputes about whether EPA’s interpretation was consistent with the law’s intent. The Court’s ruling created what has since been called “Chevron deference,” a doctrine requiring courts to defer to agency interpretations whenever the statute itself is vague.
Thousands of cases have since been decided by many courts using “Chevron deference,” though the Supreme Court itself has not applied it for almost a decade. That’s because it has led to a variety of inconsistent rulings by lower courts, and especially because it is increasingly seen as giving regulatory agencies more power than Congress ever intended. More importantly, it has stacked the deck against anyone suing federal agencies for violating their rights.
As Justice Gorsuch wrote last year, Chevron deference, “permits executive bureaucracies to swallow huge amounts of core judicial and legislative power.” That’s because when courts defer to agencies’ interpretation of vague laws, they “introduce into judicial proceedings a systematic bias toward one of the parties.” Last summer when the Supreme Court agreed to hear several cases challenging the validity of that precedent, I predicted in this space that it would finally overrule Chevron. It has now done exactly that, in a case called Loper Bright Enterprises v. Raimondo.
The court’s 6-3 opinion, written by the Chief Justice, explained that the “precedent” set by Chevron violated much older and better-established judicial norms and constitutional understandings. Namely, as Chief Justice John Marshall declared in the foundational 1803 Marbury v Madison case, “It is emphatically the province and duty of the judicial department to say what the law is.” Today’s Court cited the Administrative Procedures Act, the 1946 law which set up the process by which executive branch agencies make rules and regulations. That law also explicitly said that courts had oversight over all such actions, and were to independently judge in all disputes what the laws say, do not say, and what legislators intended when they enacted them.
Under Chevron, it had been assumed that whenever Congress was vague, it intended to delegate interpretive authority to agencies. The Supreme Court has now found there is no justification for that assumption. “Chevron cannot be reconciled with the [Administrative Procedures Act] by presuming that statutory ambiguities are implicit delegations to agencies,” the new ruling says.
Rather, “To stay out of discretionary policymaking left to the political branches, judges need only… ensure that agencies exercise their discretion consistent with the [law]. By forcing courts to instead pretend that ambiguities are necessarily delegations, Chevron prevents judges from judging.” As Justice Thomas once wrote, Chevron deference “wrests from Courts the ultimate interpretative authority ‘to say what the law is,’ and hands it over to the executive branch.”
Perhaps most fundamentally, the court wrote, “The very point of the traditional tools of statutory construction is to resolve statutory ambiguities. That is no less true when the ambiguity is about the scope of an agency’s own power – perhaps the occasion on which abdication in favor of the agency is least appropriate.”
The court has now declared that it’s time for both the judicial and legislative branches to do their jobs and stop letting unelected – and often unnamed – agency officials run the country.
Elon Musk’s Cato speech ended with a warning that “The regulatory state by its nature precludes holding bureaucrats accountable. They are acting in accordance with pre-approved powers.” Except now, maybe we’ll know exactly who pre-approved such powers.
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