Young voices
Rick Smith
THe credit at the end here matters. This "young voice' is committed to the excellence of how things ought to be over the reality of how the modern dysfunctional Congress truly works. If Congress really sought honest compromise, finding political middle grounds by accepting the compromise solutions that can be achieved through "the art of the possible," she'd be right. In an era of "my way or the highway" burn-the-bridges politics, the theory isn't working. Bless her for still believing. May we all strive to get back there.
Duncan
https://www.bostonglobe.com/2024/06/28/opinion/supreme-court-chevron-doctrine-congress/
Boston Globe
Friday. June 28, 2024, 1:25 p.m.
OPINION
With Supreme Court overturning the Chevron doctrine, lawmakers must legislate, not delegate
The court’s decision is neither conservative nor liberal — it’s a judicial commitment to honor the Constitution.
By Jill Jacobson
There is widespread panic in the wake of the Supreme Court’s ruling in Loper Bright Enterprises v. Raimondo, overturning the controversial Chevron doctrine, for fear that it marks an end to administrative power. Administrative agencies and their expertise are here to stay. But a post-Chevron world is much needed — to adhere to the Constitution, to restore a properly functioning tripartite system, and to finally put pressure on Congress to do its job.
The Chevron doctrine required courts to defer to an administrative agency’s interpretation of its enabling statute — the law that defines the contours of an agency’s regulatory power — if it was “reasonable.” That is, an agency interpretation did not need to be the likely meaning of the statute, or what the courts thought the statute meant. This is antithetical to Article III of the Constitution, which vests judges with the duty to say what the law is and reach their own independent, legal judgment instead of relying on political actors’ self-interested conception of the law. As best said by Chief Justice John Roberts, Chevron “require[d] a court to ignore, not follow, ‘the reading the court would have reached’ had it exercised its independent judgment.”
The court’s decision on June 28 does not mark an end to the use of agency expertise in the judicial process. Courts will rely on the technical expertise agencies provide in court just as they rely on the information provided by any run-of-the-mill litigant — but agency deference will no longer completely usurp the judicial function.
Proponents of Chevron argue the court’s decision will cripple federal administrative agencies. First and foremost, if agencies are acting within the bounds of congressional intent, courts interpreting the law without the Chevron doctrine shouldn’t be a problem. After all, our constitutional system does not envision governmental entities defining the scope of their own power. But more fundamentally, Chevron has enabled federal agencies to amass power and regulatory prowess far beyond what the Constitution allows, undermining the separation of powers and individual liberty. This is not a radical “crippling” of agency power but a return to constitutional order.
The fall of Chevron is a sign of the times. When Congress was functioning properly, Chevron wasn’t nearly as controversial because the majority of major policymaking was done in Congress. As Justice Elena Kagan wrote in dissent, courts deferred to an agency under the assumption that “ ‘Congress’ would have ‘desired the agency (rather than the courts)’ to exercise ‘whatever degree of discretion’ the statute allows.” But that presumption is out of step with reality now. By prioritizing primetime interviews and social media tirades over legislating, Congress has left a vast power vacuum. Administrative agencies rushed in to fill it and now regularly exceed congressional intent and regulate in ways properly done through congressional legislation.
This dynamic — where Congress fails to legislate as frequently and particularly as it should and agencies fill the void — causes a further separation of powers problem: It improperly shifts citizens’ ire with decision-making from Congress to the courts. Under the US system as traditionally conceived, Congress legislates because its members are closest to the people and, therefore, are influenced by public opinion and reaction to lawmaking activities. But when federal agencies “legislate,” the public’s reaction is transferred onto the Supreme Court when it must decide the law’s fate based on whether the agency exceeded congressional intent. Chevron makes this dynamic too easy.
Now, after Chevron’s demise, if Congress wants to make broad changes to our regulatory landscape, it will have to pass a law. No more relying on agencies to pick up the slack, without clear permission, and courts to automatically sign off.
The court’s decision is neither conservative nor liberal — it’s a judicial commitment to honor the Constitution and a major step toward reestablishing Congress — the branch closest to the people — as the most powerful branch of the federal government.
Jill Jacobson is a 2024-2025 federal law clerk, a visiting fellow at Independent Women’s Law Center, and a contributor at Young Voices.
Rick Smith
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