Supreme Court Looks Set To End 40-Year ‘Constitutional Revolution,’ Reform Governing

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OPINION: This article may contain commentary which reflects the author’s opinion.


Based on two cases the U.S. Supreme Court has taken up during its current session, justices may be poised to end a four-decade exercise in allowing federal agencies far too much leeway in deciding how to interpret laws passed by Congress.

According to Thomas M. Boyd, a former US assistant attorney general who served under President Ronald Reagan, Justice John Paul Stephens wrote an opinion in the case of Chevron U.S.A. v. National Resources Defense Council in 1984, midway through Reagan’s two terms, which started what legal scholar Gary Lawson would later describe as “nothing less than a bloodless constitutional revolution.”

The ruling essentially altered how federal agencies could interpret laws that they deemed to be “ambiguous.” Subsequent presidential administrations used this decision to implement policies that carried the force of law, frequently going against the letter of the legislation that Congress passed.

But now, Boyd noted in a column for the New York Post, “At long last, on Wednesday, the Supreme Court will hear two cases that may signal the beginning of the end to that revolution.”

Boyd noted that Article I of the Constitution says explicitly, “All legislative power herein granted shall be vested in a Congress of the United States”—not federal regulatory agencies.

However, he adds, Justice Stephens’ opinion found that “agenc[ies] may . . . properly rely upon the incumbent administration’s views of wise policy” in “reasonably” defining statutory ambiguities.

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In other words, Stephens thought that the Executive Branch—presidents and their appointees—had the authority to decide what particular aspects of laws passed by the Legislative Branch meant. That, Boyd noted, was at the center of the Chevron decision and became known as the “Chevron defense, leading President Ronald Reagan’s White House counsel, Peter Wallison, to describe it as “the single most important reason the administrative state has continued to grow out of control.”

Boyd writes: “Forty years of regulatory and judicial tumult have ensued, finally crescendoing to a point that has compelled the Supreme Court to intervene.

Loper Bright Enterprises v. Raimondo, from the District of Columbia Circuit, and Relentless v. Department of Commerce, from the First Circuit, are now before the court. Both are companies that fish for herring in New England and are family-owned and operated, and both are subject to the Magnuson-Stevens Act, which governs fishery management in federal waters. The act allowed the National Marine Fisheries Service to require herring boats, relatively small vessels that normally carry only five to six people, to also carry federal monitors to enforce its regulations.”

But it gets worse. The former Reagan assistant attorney general said the agency, subsequently and without any explicit statutory authorization, opted to compel Loper Bright and Relentless to cover the costs of these monitors’ salaries. The NMFS estimated these expenses at $710 per day, which sometimes surpasses the earnings from a day’s fishing.

Both federal circuit courts ruled that statutory silence on the matter was an “ambiguity” that required the application of the Chevron deference.

The nation’s highest court, when it accepted certiorari in both cases, proposed a two-part question that litigants would be required to address: “Whether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.”

Some of the court’s current justices—constitutional originalists, in fact—have indicated in previous opinions how they view the matter, Boyd pointed out.

“For example, in his majority opinion in West Virginia v. EPA, Chief Justice John Roberts commented, ‘We presume that “Congress intends to make major policy decisions itself, not leave those decisions to agencies,”‘ citing US Telecom Ass’n v. FCC.”

Additionally, Justice Samuel Alito joined him in writing that “a court, without deference to an agency, must decide when an agency enjoys [interpretative authority]” in City of Arlington (Texas) v. FCC. Boyd added, noting another historical reference:

In their concurring opinion in West Virginia, Justice Neil Gorsuch, joined by Justice Alito, referred to the “explosive growth of the administrative state since 1970,” as well as former President Barack Obama’s 2014 promise to use executive orders and administrative rules to bypass Congress.

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Gorsuch wrote: “The Constitution does not authorize agencies to use pen-and-phone regulations as substitutes for laws passed by the people’s representatives.”

Also, Boyd noted, Justice Clarence Thomas, writing a concurring opinion in 2015’s Michigan v. EPA, claimed that the judicial power “requires a court to exercise its independent judgment in interpreting and expounding upon the laws,” adding that “Chevron deference precludes judges from exercising that judgment.”

Concluding, Boyd said it isn’t clear how the high court will decide the cases, but offered: “A ruling striking down that overly broad grant of power to federal agencies is long overdue.”

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