Public Citizen does some great work, and I have enormous respect for Paul Alan Levy, who has always been there for me and others who have been threatened for exercising their First Amendment rights. So it came as something of a surprise to receive an email from Public Citizen about a separately named group called “Coalition for Sensible Safeguards.”
Coalition for Sensible Safeguards Calls on Lawmakers to Oppose Legislation That Seeks to End Chevron Deference
For those of you unfamiliar with Chevron deference, it comes from a Supreme Court decision that held courts must defer to the “expertise” of federal government agencies in interpreting their enabling statutes. In the educational agency arena, it’s referred to as Auer or Seminole Rock deference. Same deal, different case names.
Apparently, there is a move in Congress to enact legislation to do away with Chevron deference.
WASHINGTON, D.C. – Lawmakers in the U.S. House of Representatives should vote against an anti-regulatory proposal that would allow non-expert judges to second-guess complex policy determinations made by expert agencies, the Coalition for Sensible Safeguards said today. The misleadingly named Separation of Powers Restoration Act (H.R. 4768) does the opposite of its title and empowers the courts over the legislative and executive branches. H.R. 4768 seeks to end judicial deference to agency expertise and thwart crucial public protections, the coalition said. The bill is scheduled for a vote tonight.
If the problem was that Chevron deference was a judicially contrived scheme, and should therefore be fixed by the courts and the legislative branch should keep its nose out of it, that would be one thing. But that’s not Public Citizen’s issue.
“This bill rings a dinner bell for judicial policymaking, which is why it’s shocking to see lawmakers who call themselves strict constructionists lining up behind it,” said Robert Weissman, president of Public Citizen and chair of the Coalition for Sensible Safeguards. “H.R. 4768 invites judges to dispense with both congressional intent and agency expertise and substitute their personal policy preferences.”
That’s a curious contention. There is nothing in the proposed law that would alter the law as to statutory interpretation, such that it would invite judges to “dispense with . . . congressional intent.” The change is rather modest, amending 5 U.S.C. § 706 (the Administrative Procedures Act) by adding:
(3) by inserting after “of the terms of an agency action” the following “and decide de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions, and rules made by agencies.
What this does is remove the precedential barrier created by Chevron deference so that a court would be allowed to review, de novo, the administrative agency’s rules. It doesn’t preclude deference if the court is persuaded as to the agency’s “expertise,” but it also doesn’t preclude the court from deciding that the agency has reached beyond the law to go rogue.
Asking Paul what this was about, he explained the concern that this law would invite judges to substitute their policy preferences for those of the administrative agency. Adding to the problem, even though the “expertise” of administrative agencies may be a bit exaggerated, there is little doubt that judges aren’t on the bench because they have any particular subject matter expertise either. He’s got a point.
But then, there is the problem of administrative agency capture. Each new executive branch administration puts its own people in charge of administrative agencies. Sometimes, they’re experts. Sometimes, they’re donors to the cause with no expertise whatsoever. Ain’t that right, Brownie?
While it’s certainly true that whoever wins the executive branch gets to install their people in administrative agencies, to the victors go the spoils, the question remains whether that means they get to go as far as their enabling legislation permits or they get to reinvent the world by imposing rules, or as has become de rigueur, “guidance” that avoids even the tepid notice and comment requirements of the APA, far beyond their empowering law.
What? You want an example? Well, okay then.
Even McIntosh, despite her dodging and weaving, concedes that Catherine E. Lhamon, Assistant Secretary for Civil Rights and head of the DoE Office of Civil Rights has gone off the reservation. She has no lawful authority to mandate colleges and universities adhere to her political whims, as reflected in her “guidance,” upon pain of losing federal funds.*
When asked (see 1:37 in the video) who gave Lhamon the authority to impose her personal will upon the nation’s colleges and universities, she responded, “with gratitude, you did when I was confirmed.”
And even if you agree with the agency’s usurpation of legislative authority, the methods of imposition by an executive agency, without any oversight, allow for radical change without the vetting process that would otherwise apply to the legislative process.
The concept of checks and balances is circumvented when an administrative agency decides to craft its personal flavor of Utopia, pretending that the law that gave rise to its existence authorizes it to do anything it pleases without limitation. Congress is charged with creating law, but if an agency can manufacture its own law at its whim, then Congress is superfluous. While it can well be argued that Congress is paralyzed by partisanship, that too is part of its structure. What is not proper is for unelected bureaucrats in the executive branch to make their own law to suit their political agenda in the absence of congressional approval.
Yet, when they do (and, as shown, they most assuredly do), Chevron (or Auer, as the case may be) deference would preclude a court from smacking the agency down by holding that their interpretation of their enabling legislation has gone beyond the authority Congress gave them. In other words, the question isn’t whether the administration gets to express its will in its bureaucratic appointments, but whether those bureaucrats should have free rein to do whatever they please once they’re in power, expertise or not.
Congress should be looking for ways to strengthen our country’s regulatory system by identifying gaps and instituting new safeguards for the public. Overturning Chevron deference, as H.R. 4768 aims to do, would accomplish the opposite, ensuring even more delays in the implementation of health, safety and financial protections for the public, the coalition maintains.
Some folks like regulation more than others. Most folks like it to the extent they agree with it, and when they agree with it, fear anyone messing with an outcome they prefer. But if the system is to have the checks and balances upon which it presumptively relies, then unfettered discretion by the executive branch presents a significant problem.
Judicial review may be imperfect, but it beats no review at all, leaving administrative agencies to go rogue. Public Citizen should bear in mind that much as regulatory capture may be their preferred flavor at the moment, a new regime will bring a new agenda. If it can be imposed at will, they may find the taste a bit too sour for their liking, and there will be nothing to be done about it.
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Not sure I agree with your description of Auer deference:
“In the educational agency arena, it’s referred to as Auer or Seminole Rock deference. Same deal, different case names.”
Chevron deference relates to the government agency’s interpretation of a statute which it administers.
Auer deference relates to the government agency’s interpretation of regulations it has made under a statute which it administer.
I can see some people being more favorable to Auer deference (after all, the agency made the regulation, not Congress) and not Chevron deference (why should a federal agency be favored in interpreting laws made by Congress).
Agencies do not pass laws. Agencies do not make law. Agencies do not create laws. Euphemisms don’t change these.
If it’s all a matter of whether they write their interpretations and then the regs, or the regs and then their interpretations, then you can’t possibly fix just one (either one) of these without all the agencies learning how to circumvent the fix by using the other one instead — the only possible fix is genuine judicial review of what happens to ordinary citizens on the ground.
http://vignette1.wikia.nocookie.net/epicrapbattlesofhistory/images/5/57/Band-aid.jpg/revision/latest?cb=20140712040253
I, for one, welcome our new administrative overlords.
The issue is far more complex than the “unelected bureaucrat” terms you forced it into. Congress can’t be trusted or bothered to regulate effectively. It entrusts regulation to the agencies to create the regulations in accordance with whatever Congress has said the purpose of the law is. The Chevron standard has a sort of lesser “judicial review” built into it already which allows federal judges to overturn regulations which conflict with the actual words of the statute. The standard may be nearly insurmountable, but that’s likely attributable to the public rulemaking process which acts to safeguard against the very terribles your post parades about. Whether we need more judicial involvement is another question, but the Chevron standard is tried and true. I’d be wary of overturning the boat just so you can feel better about our democracy.
Congress could just write better laws and constrain the agency’s authority to regulate or be clearer on what it wants the agencies to regulate, but I think that’s too much to ask.
Some people prefer living in a regulatory state, where the executive branch is beyond review. Others prefer a republic, where there are checks and balances.
“Checks and balances” aren’t some talisman you can hold up to ward off any challenge to how you feel about our government. Chevron deference includes checks and balances. Judges are free to find laws and regulations unconstitutional even under Chevron. You’re charging at windmills. Chevron isn’t the enemy.
It that was so, there would be no such thing as Chevron deference, no need for it. Yet there it is. While judges are free to find laws and regs unconstitutional, constitutionality isn’t the only question. Yes, I saw what you tried to slip in.
I really want your name to be ItoSauce. Alas, I cannot always get what I want.
Opponents to the bill cite Scalia’s opinion for the majority in City of Arlington, Tex. v. F.C.C, which suggests, rather than providing checks and balances, there would be to many possible checks and no balance at all:
the dissent proposes that even when general rulemaking authority is clear, every agency rule must be subjected to a de novo judicial determination of whether the particular issue was committed to agency discretion. It offers no standards at all to guide this open-ended hunt for congressional intent (that is to say, for evidence of congressional intent more specific than the conferral of general rulemaking authority). It would simply punt that question back to the Court of Appeals, presumably for application of some sort
of totality-of-the-circumstances test—which is really, of course, not a test at all but an invitation to make an ad hoc judgment regarding congressional intent. Thirteen Courts of Appeals applying a totality-of-the-circumstances test would render the binding effect of agency rules unpredictable and destroy the whole stabilizing purpose of Chevron. The excessive agency power that the dissent fears would be replaced by chaos.
The destabilizing effect of 13 circuits is a better argument than Public Citizen makes. That said, that’s the nature of the law for everything now except admin agencies. And when there are circuit conflicts, we have a court to decide. As for offering no standard for determining congressional intent, what distinguishes this from any other determination of congressional intent? This is all pretty routine stuff.
The 13 circuits problem could be entirely avoided by giving exclusive jurisdiction to the Federal Circuit. I think that’s where the bulk of these cases go now, anyway.
That would fix that problem.
Interesting, especially with the speculations in recent years that Chevron deference may be coming to court review of Patent Office decisions. Not a post I expected to see in SJ, but appreciated.
For a very long time, I didn’t have an issue with Chevron deference. But in the past few years, I’ve watched as agencies have gone in search of new dragons to slay, and tried to extend their reach well beyond their enabling legislation. At the same time, Chevron deference has become so deeply embedded as an accepted legal principle that many take it for granted as “the way it is,” not having the long view of where is started and where it is now.
Note the banal arguments that courts, which are fully capable of determining the meaning of laws under every other circumstance, are suddenly completely incapable of determining congressional intent when it comes to regulatory agencies. It seems ridiculous on the surface, but when something like Chevron deference has gone on so long, and agencies run out of things to interpret to extent their control over lives and start searching for new areas of life to ruin, it becomes a problem. A very entrenched problem. And so, it matters.
I hesitate to to reply (heaven forbid that I should comment on something I have real world experience with), but the problem with crafting a good standard of review for Patent Office tribunals is that the big issue is (and should be) “obviousness,” which always is (and should be) a thoroughly mixed issue of fact (presumably high Patent Office competence area) and law (presumably high reviewing Article III court competence area). Roughly speaking: (i) the fact part is: what has the inventor shown us and how does it work; and (ii) the law part is: has the inventor gone above and beyond what a pedestrian engineer in the field would do. The law part is all squishy and subjective and psychological (like mens rea) and some would read that part right out of the law (like mens rea).
Different agencies raise very different issues. PTO is a busy place. It probably has less time to create mischief than, say, the EEOC or OCR. That said, Slants.
I count nine bracket pairs. None left open. Seems legit.
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