AMAC Exclusive – By Katie Sullivan
The Supreme Court looks set to finally rein in the power of unelected federal bureaucrats and restore the Constitution’s separation of powers between the executive and legislative branches.
Two cases the Court will rule on this term, Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo could overturn the precedent set in Chevron v. Natural Resources Defense Council (1984) – a ruling that many legal scholars view as the origin point for the unchecked growth of federal agencies.
In order to understand the significance of the Relentless and Loper cases, it is necessary to first understand the history behind Chevron.
In that case, the Chevron Corporation challenged the Environmental Protection Agency’s (EPA) interpretation of the Clean Air Act. The EPA had issued regulations allowing states to adopt less stringent emission controls for certain industrial facilities if they met specific criteria. The Natural Resources Defense Council (NRDC) argued that the EPA’s interpretation was incorrect and that the Clean Air Act required more stringent controls.
In essence, the question at the heart of Chevron was about the leeway that federal agencies should have when enforcing laws passed by Congress.
To answer that question, the Supreme Court, in a landmark decision authored by Justice John Paul Stevens, articulated a two-step framework for reviewing agency interpretations of statutes.
First, a court must determine if the statutory language (or the text of the law) in question is ambiguous. If the statute is not ambiguous, the court is to apply the plain meaning of the statute when determining if a federal agency acted within its constitutional authority.
If a court determines the statutory language in question is ambiguous using all interpretive means available, they must move on to step two, which requires the court to defer to the involved agency’s reasonable interpretation of the statute. This means the court does not decide what the statute means or apply its own definitions when an agency is involved. Instead, the court must uphold the bureaucratic agencies’ determination of the meaning of statutes enacted by Congress.
The ruling established the term “Chevron Deference,” which has had a profound impact on administrative law. Since being decided in 1984, the case has been cited in approximately 15,000 judicial decisions, making it one of the most cited Supreme Court decisions of all time.
Ironically, when Chevron was decided, many conservatives touted it as a win, claiming it prevented unelected federal judges from making decisions about the meaning of statutory language and instead left interpretation up to those with expertise in the applicable field – ostensibly federal bureaucrats.
But it soon became clear that Chevron Deference would become a powerful weapon for the administrative state to expand its own power – primarily because determining whether a statute is “ambiguous” is a subjective exercise. Throughout oral arguments in the Relentless and Loper cases, for instance, lawyers for the fisheries have provided example after example showing some circuit court judges finding ambiguity in statutory language with alarming frequency, while other judges have found the same language to be unambiguous.
As long as federal agencies can ensure their case is heard in a friendly court, Chevron Deference practically ensures that their interpretation of federal law – no matter how divorced it was from the actual language of the law – would win out. According to a Michigan Law Review article from 2016 which reviewed more than 1,500 cases, “the circuit courts overall upheld 71% of [agency] interpretations and applied Chevron deference 77% of the time.”
The specific issue in Relentless and Loper is whether the Magnuson-Stevens Act passed in 1976, authorizes the National Marine Fisheries Service (NMFS) to promulgate a rule that would require fishing companies to pay the salaries of federal government “observers” on their boats. Lawyers for Relentless have argued that if all the justices did not agree with the fisheries’ interpretation of the statute, under Chevron, they would still have to defer to the agency’s interpretation, as long as the interpretation was reasonable. The administrative state therefore has more power than the judiciary – a clear violation of the Constitution’s separation of powers.
Although the Court could rule in favor of the fisheries without overturning Chevron, many conservatives are anticipating a sweeping ruling that reverses the 1984 decision. As Washington University Law Professor Sanne Knudsen has noted, the Court’s 6-3 majority includes justices who have openly criticized Chevron while serving on lower courts.
Should the Court decide to overrule Chevron, which it seems inclined to do after oral arguments in early February, it would be a major win in reigning in the currently unchecked power given to federal agencies, which have become overtly politicized and weaponized against conservatives.
Chevron upset the Constitution’s system of checks and balances, tipping the scales wildly in favor of the executive branch and paving the way for the growth of dangerously powerful federal agencies. Now, the Court has a chance to correct that error.
Katharine “Katie” Sullivan was an Acting Assistant Attorney General and a senior advisor to the White House Domestic Policy Council under President Trump. She previously served 11 years as a state trial court judge in Colorado.
Whether or not the Supreme Court acts correctly in this case, this is yet another example of how poorly Congress writes most of its bills and laws, which then up being endlessly litigated in the courts for years and years.
I understand the rationale as to why Congress does so, simply because Congress has, over time (many, many years), gone from drafting clear and specific legislation, with clearly defined parameters, to writing legislation that completely removes Congress itself from any real oversight and thus accountability for the legislation it creates. This was of course all intentional on the part of Congress going back all the way to the beginning of this practice in Washington in the late 60’s and early 70’s. Thus, shifting the responsibility and also any political fallout or “unintended consequences” (remember that phrase that used to be the favorite excuse of the politicians several years back to excuse anything that went wrong from their actions?) from poorly crafted legislation being passed by Congress to nameless and faceless bureaucrats in the various administrative agencies in the Executive Branch that are almost never singled out for either accountability or their political bias to drive an agenda.
So, it will be interesting to see how the Supreme Court rules, if for no other reason than whether the Supreme Court, in its decision, calls out Congress itself for the intentionally vague wording and the obvious buck passing that Congress has engaged in for the last several decades. After all, almost every single piece of legislation that Congress has written in this same timeframe is as vaguely worded as Chevron. Which is why the courts are filled with thousands upon thousands of cases each and every year over the interpretations the various federal agencies use for what should be clearly defined parameters.
How about if we just made Congress personally responsible legally for the decisions they make or do not make. That would certainly thin the crowd that wants to be a career politician. Their legislation affects Americans personally every day. They should be personally responsible for the legislation they do or do not do. If that passed into law there would not be a Democrat left in office! The rats would jump ship
Vague legislation leads to years in court. It also leads to job security for attorney’s on both sides. With the majority of Congress being attorneys this is exactly what they want for their occupational friends and family. We the taxpayers are stuck footing the bill. It is time to stop sending attorneys to DC and start sending a wider variety of real Americans. This will then provide a true government by the people for the people.
I surely hope that SCOTUS overturns the Chevron ruling. Government agencies are way out of control and destructive to business and the economy in general, by driving up the cost of doing business, as it is in the case of the fishermen.
With the current crop of legislators, are you surprised we get legislation that has nothing to do with protecting Americans? Illegal aliens, now, that’s a different story.
In my opinion, very law should have 3 parts:
1) Why was the law made and what is it expected to accomplish -it’s purpose.
2) The law itself, as unambiguous as practical. The purpose of the law (part 1) should help alleviate ambiguities.
3) When the law needs to be reviewed to see if it has accomplished it’s purpose, no more than 6 years, if it has not accomplished what it was meant to do, it gets revoked, if Congress fails to review it, it gets revoked.
This should help to create laws that are clear and concise (yeah, right, with politicians), get rid of laws that do not work, and keep congress busy reviewing old laws rather than making new ones.
In a never ending process politicians seem to find “problems” that only the federal government can solve. Many of the laws written, while well intended, are passed onto government agencies and unelected beauracrats to carry out.These unelected beauracrats and their agencies then use their own interpretations of these laws to implement their agenda. How many of the problems that these laws were intended to fix ever get fixed? Bottom line is that we are only expanding the federal government at the expense of never fixing any problems.
Even if the laws were written in concise and definitive language the agencies would still ignore them; take the 2nd amendment as an example; the 14th amendment where it requires a citizen of age to be eligible to vote federal and state; the 1st amendment requiring free discussion and practice of religion; 4th amendment: a person shall be secure in home, person, papers and effects; the 6th, 7th & 8th amendments: (J6 defendants) to a speedy trial with representation, discovery, confront accusers, decision by jury of peers, and no cruel or unusual punishment;…
–The old saying still holds here: “criminals do NOT obey laws”!!!
Unelected bureaucrats must be muzzled. This cancer is destroying the country.
Congress does more to protect itself than anything!! They want to keep their power and wealth and for 40 years they have been allowed to expand the government and it’s intrusion into our daily lives!!! We need to seriously pare down the number of government employees especially at the fed level!! And I’m sure there are some agencies that could just be dissolved – like the Department of Education (doesn’t need to be in the feds hands – they have made a big mess there)!!!
Excellent article. The U.S. Supreme Court must restore the U.S. Constitution separation of powers between executive and legislative branches if they follow the U.S. Constitution and the law.
Something that Dictator Beijing biden and the democrats don’t do as we constantly see by their actions. Just look at the Election Interference of President Trump alone.
Dictator Beijing biden not charged by the DOJ for crimes he’s guilty of with evidence galore Selling Out the United States and STEALING Sensitive Highly Classified Documents without National Security Clearance. The same goes for the following mentioned, H. Clinton guilty for destruction of government property and sending Classified Information over her civilian cellphone and not charged for crimes she committed. Bill Clinton guilty of crimes and not charged. obama guilty of crimes and not charged.
The executive branch illegally and unconstitutionally bypassing the legislative branch to FORCE its own private agenda on the American legal citizens but not their Illegal Alien Terrorist Invasion buddies to vote illegally and unconstitutionally.
So hopefully the U.S. Supreme Court will do the right thing and show it backs the U.S. Constitution and restore the separation of powers between the executive and legislative branches.
I certainly didn’t support any violent activity in KC today but I didn’t watch nor do I watch any NFL activity. I had my father and five uncle’s who fought in either the S.Pacfic or the European theater in WWII. I can only imagine what people who lost someone in the past few years felt about the NFL having two national anthems.
Power was given to the executive branch. Thereby creating a dictatorship. So much for the democracy ole Joe and the rest of the dems talk about. We are a Republic of the people, by the people and for the people. Remember that justices and keep the three branches of government separate, and not overreaching of one into another.
Throw in TERM LIMITS to Spice things up.. Love my Country hate the Government.
What is plain to see depends on your point of view. We cannot have perfect vision. We have to hope the court will require plainness and reestablish limits on the regulations now damaging all of us. The fishermen are a perfect example of damages which should never have occurred.
Do Not under any circumstances hold your breath waiting for the RIGHT DECISION! I am beginning be concerned about some of our supposed conservative people on the “Supreme Court”.
The people are assembling by state and are poised to change all and any outcome on rulings from the court or legislative activities in the United States Congress and state legislative governments and not limited to municipalities. In Securing Constitutional laws. At present there is being stated a 50, 50 state allegiance from one side or the other. When there are more states actually securing constitutional laws. Than not, The reasons are evident. In that if it becomes more than 50, than it can be construed as a rebellion of the states. Bringing in disciplinary actions from the federal enterprise system. The time is over due for the states to act. If the the court fails in upholding these Inalienable rights, the states may act to rectify any and all past and present tampering with the United States Constitution and securing the rights of the people. The court is not immune to such actions that the States are moving towards and will be influenced strongly by such possible actions. In that if the states act may limit and change the power of the court.
The fact remains that Congress has been giving themselves “Free Rides” since 1921 when the GOA was created. So, is it any wonder, that Congress also votes to select Supreme Court Justices? I would like to believe that the Justices that “Serve” the United States actually have the heart and strength to stand up to the “laws” that are created with alternative purposes, as it has been shown repeatedly via past court cases… I am very much interested in the directions each Justice takes on this, watching C-Span of the discussion!
Chevron was the fertilizer that empowered the deep state and career bureaucrats to grow unchecked fr too long. Hopefully SCOTUS rules the death knell to both invasive species.
The decision is of little importance. Look around not just here in the US but look across the collective western world. The collective west is in the denial stage of a terminal diagnosis.
It is all over but the crying and we did it to ourselves.
I hope that the days of federal UNELECTED bureaucrats making the laws and the decisions regarding the way things are run will end soon with the overturning of the Chevron decision. If the bureaucrats want to make law they need to leave their jobs and run for elected office. This way they will finally be held accountable for their decisions.
Please don’t forget that congress writes many laws as a framework for unelected bureaucrats to provide rule making that is truly the nitty gritty of the impact on all affected. A complete abdication of responsibility which allows the entrenched unelected government denizens to make law. No wonder the DC leviathan has metastasized deeply into our lives.
Long before the 1984 Chevron decision, The progressive Reapportionment Act of 1929 did more to empower the administrative, regulatory and “deep state” than any other piece of legislation by consolidating “‘the power of the people’ into the hands of too few.” (cf., Schweikert v. Herring et als) Congress did this ostensibly so that they would not have to add on any more rooms to the Capitol to make room for additional members of the House which were supposed to be based on changes in population. However this statute which should have been passed as a necessary constitutional amendment requiring ratfication by the states, fundamentally reduced Americans voice in their own government instead by imposing artifical caps on both the House of Representatives and the Electoral College leading indirectly to the growth of the aforementioned other 3 branches of unelected government. Now instead of 1 representative with oversight ability for to serve 30,000 individuals, some Congressional districts represent over 610,000 people and diverse communities of interests where urban and suburban voters often hold neighboring rural voters and values “hostage” and Presidential races are determined largerly more by those more densely populated municipalities than as designed to represent all parts of the country.
BRAVO IF DONE HOORAY
They want to put a cop in every fishing boat, make the fishermen pay the cop, and then accept the citations that they may get? How about this scenario:
If you want to go anywhere in your car you MUST:
1. Notify the police department that you want to leave your home.
2. Wait for the nice police officer to arrive at your home.
3. Accept and/or agree to appear in court for each citation the nice officer may give you.
4. Pay the nice officer at his total hourly rate, including his travel time, when he exits your car upon your return home.
Sounds like:
“Show me a person, I’ll find the crime” Vladimir Lenin (as I recall).
When the decision finally is issued, it probably won’t have any major impact.
40 years later and Chevron v. Natural Resources Defense Council (1984) is finally getting a look-see from the Supreme Court? Wow. Some victory. That’s 4 decades folks. FOUR DECADES.
Anyone remember or ever watched the movie “The Trial”? That is exactly where we are right now.
It’s about time. these agencies operate with no oversight and run rampant over everything.
O m
M Gosh…some sense and sensibility ! Nah, can’t be, well I sure do pray that it is so. Let’s all pray for the best.
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Term limits and more Mr. Smiths Going to Washington”
While I am all in favor of overturning Chevron, the problem is that there are many laws that approach a problem from the perspective of 30,000 feet, and not at ground level where the problem actually lies. I’m not sure (and I don’t think the Justices are either, when push comes to shove) what would replace Chevron, if the Court is in fact inclined to rein it in.
Perfect timing now it will be easier for Trump to gut the government employees unions.
“reigning in”
reining in
Very interesting indeed Thanks for sharing
I remember President Regan saying government is not the solution govt is the problem,,examples when they convinced Regan to give amnesty to 1 million illeagles it turned out to be almost 3 million next identy theft, the IRS is responsible they left people claim interest on their credit cards so every one had to provide their Social Security number to the to the credit card companies that is why we have identy theft. THANKS to the GOVERNMENT.