On the same day the Supreme Court heard a challenge to its own habit of blithely deferring to executive agencies’ interpretation of ambiguous regulations, a group of Republican senators introduced a bill that would specifically direct the court in future cases to be less deferential.
Good. It’s long past time for Congress to rein in the administrative state. It would be even better if Congress crafted laws more carefully, to leave less ambiguity in the first place.
The Supreme Court case, Kisor v. Wilkie, involves the court’s Auer deference, by which the court defers to almost any remotely plausible interpretation an executive agency makes about its own regulations. Conservatives long have criticized this deferential stance, along with the parallel “Chevron Deference” doctrine by which the high court defers to agencies’ interpretations of ambiguous congressional statutes.
The critics of these court doctrines say, quite cogently, that the doctrines give too much leeway to bureaucrats, allowing them to expand their power arbitrarily at the expense of ordinary citizens.
Republican senators have introduced the Separation of Powers Restoration Act of 2019, which would amend the Administrative Procedure Act of 1946 to direct courts to review statutes and regulations in a neutral manner, rather than with the scales weighted in favor of the agencies’ own interpretations. Rep. John Ratcliffe, R-Tex., introduced companion legislation in the House.
“This bill is about Schoolhouse Rock basics,” said Sen. Ben Sasse, R-Neb. “Congress writes the laws, the Executive Branch enforces them, and the courts resolve cases and controversies. That basic system has been turned upside-down: Unelected bureaucrats that nobody can fire write an avalanche of regulations, and the courts just trust them to interpret the limits of the law and even their own regulations. This bill tries to restore some accountability by making sure that judges don’t automatically defer to Washington’s alphabet soup of bureaucracies.”
Sasse and his colleagues are right. Citizens should be able to rely on the most natural, common sense meaning of laws and regulations, not be at the mercy of regulators pushing the limits of plausibility in expanding their own arbitrary power.
For example, in 2012, the First Circuit Court of Appeals deferred to the Environmental Protection Agency when it ordered a small water district in Massachusetts to spend a whopping $200 million to upgrade a wastewater treatment facility that it had already spent $180 million upgrading just three years earlier. EPA didn’t even allow allowing the district to finish testing whether the earlier upgrade had been effective. The costs of the new upgrade were obviously passed on to the district’s customers, meaning the EPA in effect ordered a tax of sorts that may not even have been needed to ensure clean water.
Of course, the problem would be far more manageable if Congress did its own job better. One reason agencies so extravagantly exploit ambiguity in laws is that Congress writes laws with such extravagant ambiguity. Congress’s work is sloppy, its legislative language often imprecise. Worse, it often deliberately directs agencies to “promulgate regulations consistent with this statute,” without including any guardrails to define “consistent.”
The Separation of Powers Restoration Act of 2019 is a great idea. Congress should pass it, and President Trump should sign it. And in the future, Congress should make it unnecessary by doing its own legislative job more carefully, so that the agencies and the courts will have less ambiguity to resolve.
