Beth Klein Boulder Attorney explores the interpretation of vague legislation and how agencies and courts confront circumstances where Congress has failed to be clear. Do we defer to the agency bureaucracy or simply strike down ambiguous laws?
Under the Chevron Doctrine, Courts defer to agency interpretation of vague or ambiguous law. What is problematic is that agencies are not only given the freedom to determine what the law is, but they can change their interpretation at any time. Uncertainty about law destabilizes our society.
Chevron matters more today than ever, as President Trump changes agency rules – deleting 8 years of pro-union labor rules, immigration policies, environmental controls on fossil fuels and how the ACA is administered. Can America withstand the whipsaw change of law and policy with the change of the party in charge? Probably not well.
This is the current standard:
First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute . . . Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.
— Chevron U.S.A. v. NRDC, 467 U.S. 837, 842-43 (1984).
Gorsuch has called out the destabilizing effect of this doctrine. Citizens should be able to rely on clear and stable law so that they can conform.
Under Chevron the people aren’t just charged with awareness of and the duty to conform their conduct to the fairest reading of the law …. Instead, they are charged with an awareness of Chevron; required to guess whether the statute will be declared “ambiguous” (courts often disagree on what qualifies); and required to guess (again) whether an agency’s interpretation will be deemed “reasonable.” . . .
And, of course, that’s not the end of it. Even if the people somehow manage to make it through this far unscathed, they must always remain alert to the possibility that the agency will reverse its current view 180 degrees anytime based merely on the shift of political winds and still prevail.
Federal judges have started to question the constitutionality of allowing Congress to grant so much deference to unelected bureaucrats and to pass unclear and unfinished laws. Judge Brett Kavanaugh of the D.C. Circuit Court of Appeals wrote a decision last year declaring the structure of the Consumer Financial Protection Agency unconstitutional because no one including the President had the power to fire its director. Kavanaugh says “Because of their massive power and the absence of Presidential supervision and direction, independent agencies pose a significant threat to individual liberty and to the constitutional system of separation of powers and checks and balances,” Gorsuch has expressed concerns about Congress delegating legislative power to the President. The Supreme Court decided in 1892 that Congress can’t delegate legislative power to the president – members of Congress must remain accountable to voters in their own districts. The Supreme Court in 1935 rejected a statute giving the president the power to write an industrial code of competition.
The Courts alway struggle with legislative laziness, bad drafting and the inability and failure to agree on policy. Activist judges fill in the gaps. Others defer to the political branch or defer to agencies via the Chevron doctrine.
We are about to embark on a new legal journey. And its time for Congress to step up their commitment to the People.
Beth Klein 