Miami Herald (Sunday)

With or without Chevron, clearer laws are essential

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Among the many rulings the Supreme Court handed down this term, a decision on so-called Chevron deference could prove especially consequent­ial. The question at issue was whether the courts or government agencies should determine the meaning of ambiguous laws. The new ruling unsettles a 40year-old understand­ing by shifting some of the power over these choices away from the executive branch. Many regulatory actions may now face a torrent of litigation.

Chevron deference matters more than it should because Congress insists on passing so many ambiguous statutes. Lawmakers do this partly by accident, failing to think through how new regulation­s will work in practice, and partly by design, settling on muddled directives as a way to build coalitions and satisfy rival constituen­cies. In either case, their failure leaves the other branches of government to work out what the laws in question actually mean.

Under the now-discarded Chevron doctrine, courts usually deferred to the wisdom of regulatory agencies – and, on the face of it, with good reason. Officials at the Environmen­tal Protection Agency, for example, know a lot more about how to regulate pollution than do lawyers and judges. The problem is that the relevant statutes give the agencies such wide leeway that they can sometimes act as de facto lawmakers. Under Chevron deference, the agencies weren’t required to show that their interpreta­tion of the law was correct, or the best or most plausible interpreta­tion – only that it was “reasonable.” Over time, agencies have become increasing­ly adept at widening this discretion and expanding what conservati­ves often deride as the administra­tive state.

So it’s no surprise that the court’s conservati­ve majority has overthrown the Chevron understand­ing – or that the liberal minority objected in such strident terms. In a dissent, Justice Elena Kagan wrote, “A longstandi­ng precedent at the crux of administra­tive governance thus falls victim to a bald assertion of judicial authority. The majority disdains restraint, and grasps for power.”

It’s worth rememberin­g that the politics of this decision can cut both ways. When Chevron deference was first establishe­d in 1984, conservati­ves applauded and liberals were dismayed. Under President Ronald Reagan, the EPA aimed to lighten regulation of power plants. Liberals wanted the agency’s discretion to do this reined in and objected when the Supreme Court said, in effect, the regulators know best. As you might expect, opinions on where power in these matters should reside often have more to do with political preference­s and who happens to control the respective branches of government than with constituti­onal propriety.

Writing for the majority, Chief Justice John Roberts said, “By its sheer breadth, Chevron fosters unwarrante­d instabilit­y in the law, leaving those attempting to plan around agency action in an eternal fog of uncertaint­y.” That’s true. Kagan’s dissent is equally correct to say that overturnin­g Chevron will itself be enormously disruptive. The fact is, there’s no good remedy for Congress’ tendency to write ambiguous laws. If lawmakers cannot bring themselves to enact clearer statutes, agencies and the courts will frequently be at odds over what the law demands. Whichever branch gets to choose, the eternal fog of uncertaint­y won’t lift.

The fault, and the only good solution, lies with Congress.

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