For decades, Congress got comfortable abdicating its responsibility for lawmaking, giving the executive branch more authority to implement policy.
The end result became a myriad of rules and regulations ordered by presidents and implemented by bureaucrats who don’t have lawmaking authority.
What precipitated it was the 1984 Supreme Court decision Chevron v. Natural Resources Defense Council. The decision allowed federal judges to give deference to federal agencies when a dispute arises over ambiguous statutes, so long as the proposed rule or regulation is “reasonable.”
A Washington Examiner editorial correctly argues that once Congress gave decision-making over to the executive, the Chevron deference became an excuse for incoming administrations to make whatever changes they wanted to agency policies with the stroke of a pen. With no party controlling the White House for more than eight years since 1981-1993, it provides ample opportunity for incoming administrations to change rules and make up new ones.
There are other problems as well. By allowing agencies to interpret statutes, judges violate the oaths they take. Interpreting laws and statutes is the very reason we have a judicial system.
Critics of overturning the decision argue that it would turn decision-making about policy over to judges who don’t have the expertise to do it. Such arguments ring hollow. The judge’s responsibility is to make a decision about the law, not policy. Judges routinely strike down laws or statutes within laws that are vague or ambiguous. A federal judge recently blocked an Ohio law that requires parental consent for children under 16 to install social media apps on their phones, calling the law “troublingly vague.” It’s doubtful the judge in question is a technology expert.
Also, what does it say about the law when judges abandon their responsibilities and leave it to interested parties to decide? Think about this applied to a criminal trial. Prosecutors ask to introduce evidence, the defense objects. It would not go over well if a judge said, “Well, I am not a forensics expert, so in this case I will defer to the prosecution and let them decide.”
And that leads directly to concerns about Fifth Amendment due process. Impartiality is the lowest common denominator in due process. The judicial oath states, “…solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties…” as a judge.
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How does deferring to the Commerce Department or the Environmental Protection Agency on legal matters regarding a statute fit within the bounds of that judicial oath? In what universe will an interested party get a green light to move ahead and say, “Well, we’ve given it some more thought and decided to change our minds.”
Government regulation and bureaucracy don’t work that way. It’s why people file these lawsuits. When it comes to the government, the old adage applies: Give them an inch, and they’ll take a mile.
Overturning Chevron is the proper decision. It would rein in executive power. It would also force Congress to do its job, which is to pass laws, taking away lawmakers’ ability to bellyache about executive power they’ve handed over. Finally, it would restore the proper role of judges, keeping statutory interpretations out of the hands of bureaucrats and in the hands of the legal experts.
Jay Caruso is a writer and editor residing in West Virginia.
