When we talk about “the Swamp” — the vast, immovable and unaccountable federal bureaucracy — the conversation always focuses on how it often thwarts presidential actions. But that’s only half the problem with the Swamp. The other half is in how it abuses the power Congress gives it.
Chevron has been whittled away in recent years by the “major questions” doctrine.
Last Wednesday, attorneys representing northeastern fishermen argued against a rule issued by the Commerce Department through the National Oceanic and Atmospheric Administration. They argued that the new rule, which would require each boat to pay roughly $700 per day to fund the salary of human “at-sea” monitors for each fishing venture, was beyond the power of the agency to make. (READ MORE from Jed Babbin: Hitting the Houthis and Other Biden Mistakes)
The 1976 Magnuson-Stevens statute gives NOAA the authority to put those at-sea observers aboard fishing boats to guard against over-fishing. The fishermen contend — correctly — that the government should bear the cost of the observers, not the fishermen themselves. That cost could and should be ruled to be a tax on the fishing operations that could only be imposed by Congress. Article 1, Section 8 of the Constitution, and the 16th Amendment, give Congress the exclusive power to lay and collect taxes.
In the fishermen’s case, a lower court ruled that the statute was vague — no surprise there — and that the court, under Chevron, had to rule in favor of the agency’s interpretation of its powers.
The heart of the case asks that the Court overturn its 1984 precedent in Chevron U.S.A., Inc. v. Natural Resources Defense Council which gave federal agencies much of their power to regulate activities of Americans. Overturning that case would kill much of the Swamp’s power.
The Chevron doctrine states that if a federal rule is challenged in court, the court should defer to the agency’s “reasonable” interpretation of any vague congressional statute that grants it the permission to create the rule.
In Chevron, the company challenged rules issued by the Environmental Protection Administration that required states which had not achieved the national clean air standards to establish a permit program regulating “new or modified major stationary sources” of air pollution.
The high court held that because the Clean Air Amendments of 1977 were vague, courts had to defer to the EPA’s “reasonable” interpretation of the law in its regulations.
That was a fundamental mistake that has burdened the American economy with far too many restrictive regulations.
The problem is that Congress, being as lazy and indecisive as it is, leaves too many laws vague and gives far too much discretion — real power — to the agencies to make up implementing rules. When it does so, it delegates what should be its exclusive powers to regulatory agencies in violation of the Separation of Powers principle. What is Congress’s responsibility it cannot and should not — though it often does — abdicate in favor of executive agencies. (READ MORE: Biden’s Administrative State Erases Trump’s Deregulatory Initiatives)
There are far too many cases in which courts have applied Chevron to reach the wrong result. One case, Utah v. Evans, proves the problem.
In the Utah case, the Census Bureau used its “imputation” rule that enables it to — in the cases where census forms aren’t returned — to impute the number of people in a home from the populations of nearby homes. This defies Article 1, Section 2 of the Constitution that requires an “actual enumeration” in the census. Utah lost a congressional seat as a result of the Census Bureau’s “imputation” rule. The courts upheld the Census Bureau’s action based on the Chevron doctrine.
Overturning Chevron would have an enormously beneficial result. Courts would have to look behind an agency’s interpretation of the law to decide whether the law in question actually gave the agency the power to issue the regulation in question. If that happens in the fishermen’s case, the result would be devastating to the bureaucracy.
In the latest example, the Biden administration seeks to impose a tax on natural gas by regulation, bypassing Congress. It’s another usurpation of Congress’s exclusive power to tax. If the Chevron doctrine is left unchanged, that regulation could be upheld in court.
Chevron has been whittled away in recent years by the “major questions” doctrine under which regulations that have major economic effects can be overturned without deference to an agency’s “reasonable” interpretation of the law. The “major questions” doctrine does not go far enough. It’s time for SCOTUS to overrule Chevron and hold regulatory agencies to much tougher standards. (READ MORE: Can Artificial Intelligence Save the Regulatory State?)
We don’t know how the court will rule on the fishermen’s case. As usual, the split will be between conservatives — such as Justices Kavanaugh and Gorsuch who, as lower court judges, frequently criticized the Chevron decision as an abdication of courts’ Article 3 responsibilities — and liberals such as Justices Sotomayor, Jackson, and Kagan. It’s unlikely that the Chevron doctrine will survive intact. Let’s hope it doesn’t.
