Commentary: Draining the Swamp Is Now a Job for Congress

by Mark Pulliam

Wading into the confusing abyss of administrative law, on June 28 the U.S. Supreme Court, by a 6-3 vote, overruled the much-criticized 1984 decision in Chevron, restoring the bedrock principle — commanded by both Article III of the Constitution and Section 706 the 1946 Administrative Procedure Act — that it is the province of courts, not administrative agency bureaucrats, to interpret federal laws. This may sound like an easy ruling, but the issue had long bedeviled the Supreme Court. Even Justice Antonin Scalia, an administrative law expert, supported Chevron prior to his death in 2016. In Loper Bright Enterprises v. Raimondo, Chief Justice John Roberts sure-footedly dispatched Chevron.

If, as I wrote for The American Conservative in 2021, “Taming the administrative state is the issue of our time,” why did the Supreme Court unanimously (albeit with a bare six-member quorum) decide in Chevron to defer to administrative agencies interpretations of ambiguous statutes, and why did conservatives — at least initially — support the decision? In a word, politics. In 1984, the President in charge of the executive branch was Ronald Reagan, and the D.C. Circuit — where most administrative law cases are decided — was (and had been for decades) controlled by liberal activist judges. President Reagan’s deputy solicitor general, Paul Bator, argued the Chevron case, successfully urging the Court to overturn a D.C. Circuit decision (written by then-Judge Ruth Bader Ginsburg) that had invalidated EPA regulations interpreting the Clean Air Act. Thus, in the beginning, “Chevron deference” meant deferring to Reagan’s agency heads and their de-regulatory agenda.

What changed? Chevron deference later empowered leftist presidents such as Barack Obama. The occupant of the White House inevitably changes with elections, but the vast federal bureaucracy — largely free of electoral influence — has congealed into a fetid swamp, issuing lawless decrees more voluminous than the statutes enacted by Congress, an arrangement derided by critics as the administrative state. Scholars such as Philip Hamburger (author of the 2014 treatise Is Administrative Law Unlawful?) devastatingly questioned the legitimacy of post-New Deal government-by-rulemaking, taking the bloom off the Chevron rose. The D.C. Circuit, despite occasional — and short-lived — periods of conservative hegemony, remained a generally liberal bastion. The biggest change was the ascendancy of originalism and President Trump’s appointment of three strong conservatives to the Supreme Court.

The ultimate question is, will this help drain the swamp? Contrary to White House press secretary Karine Jean-Pierre, Loper Bright is not “biased” in favor of Republicans and “special interests.” It is “biased,” if at all, in favor of political accountability. Congress, which writes the laws that agencies are supposed to implement, has gotten lazy and often enacts vague statutes, leaving it up to administrative agencies to fashion far-reaching policy in the form of regulations. Congress and the president are subject to political control; agency bureaucrats are not. In theory, Loper Bright will strengthen the role of political actors and weaken the administrative state — a victory for democracy. As the Wall Street Journal noted, “Regulators will now have a harder time stretching laws to expand their power.”

Harvard law professor Adrian Vermeule, a diehard Chevron champion, believes that Loper Bright may have a limited impact on the administrative state because Roberts’ majority opinion contains this passage:

Courts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires…. And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it. (Emphasis added.)

In other words, Congress can, within amorphous limits, affirmatively authorize agencies to “fill in the blanks” via rulemaking. Vermeule, an apologist for the administrative state, concludes that “What this means is that many, most or even all of the cases that were previously called ‘Chevron deference’ cases can now be relabeled as ‘Loper Bright delegation’ cases.” We shall see. As the history of Chevron reveals, administrative law is prone to unintended consequences. Loper Bright will limit the power of unelected bureaucrats only if Congress performs the lawmaking job envisioned by Article I.

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Mark Pulliam is a lawyer and writer living in east Tennessee. He blogs at misruleoflaw.com. This article was first published at TomKlingenstein.com.
Photo “U.S. Capitol Building” by Tom Fisk.

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