CONGRESS HAPPY TO LET AGENCIES DO THEIR WORK
Normal people are not closely following a pair of Supreme Court cases about the regulation of herring fishermen in New Jersey and Rhode Island. Many of the small number of people who are passionate about these cases are indulging in hyperbole to try to generate interest — and to talk around some of the unsettling truths beneath the cases.
The main question is whether courts should defer to government agencies when they interpret the statutes that give them power. That’s what the Supreme Court said should happen in a 1984 case known as Chevron. If the Supreme Court keeps that rule, opponents of Chevron say, we will be one step closer to “tyranny”: Government bureaucrats will be able to determine the limits of their own authority. If the justices instead discard Chevron, they will be accused of voting to “gut” federal regulations: Experts with specialized training will have to face secondguessing from judges who know little about their fields.
Neither alternative looks attractive because there is no perfectly satisfying solution to the problem of how to resolve ambiguities in the law. Put either agencies or judges in charge, and the result might be abuse. In the 1980s, Supreme Court Justice Antonin Scalia became a cheerleader for Chevron based on the practical judgment that there was more to fear from freewheeling judges than from agency personnel subject to presidential control and political pressure.
Trends in government led him to reconsider that judgment toward the end of his career. Government agencies were taking greater liberties, in all senses of the term. Executive-branch expertise and power did not yield steadiness of administration, as one might have hoped, but zigzagging policy depending on who won the most recent presidential election. Congress failed to act as a check on regulators. Now, when presidents stretch laws to maximize their powers, their congressional allies applaud instead of trying to claw back authority for the legislature.
Most Republican politicians sided with President Donald Trump when he claimed he could use federal money to build a border wall without getting congressional approval. Most Democrats backed President Biden when he asserted he could forgive student loan debt without getting a law passed.
Congress doesn’t just fail to stand up for itself. It deliberately passes vague laws that pass the buck to the other branches of government, allowing legislators to take credit for acting on some goal — clean air, help for veterans, you name it — without having to take responsibility for the specific decisions needed to pursue it.
Far from resenting these presidential power grabs, legislators greet them as a relief from the burden of finding compromises.
Conservatives have turned against Chevron because judicial power doesn’t scare them as much now that they wield it — and also because letting agencies interpret the law for themselves seems to have abetted this ongoing breakdown in the separation of powers. Unfortunately, overruling Chevron is unlikely to force legislators to step up. The courts have repeatedly weakened the ruling without having any such effect.
That’s not a reason to keep Chevron. It’s a reason to conclude that there is no substitute for a Congress that does its duty, including guarding its own status as lawmaker. Which raises a broader point that is too easy to forget: The Constitution’s checks and balances don’t operate automatically, like a machine. Republics presuppose a higher degree of virtue than other forms of government. Presidents have to exercise self-restraint instead of looking for every loophole; members of Congress have to pass laws for which they’re willing to be held accountable; and voters have to insist on both.
In our day, though, the idea that our leaders should be men and women of high character is considered naive or outdated. If at the same time our constitutional government is working poorly, perhaps it is not an accident.