An effort is underway to undermine the authority of federal regulatory agencies, some 100 of them. Scholars call these agencies the foundation of the contemporary administrative state. Conspiracy theorists call them “the deep state,” which must be reined in or eliminated because they undermined the Trump presidency.
Everyone is familiar with the so-called alphabet agencies, the ones that go by their initials. Congress created the first federal agency in 1789 when it set up the U.S. Marshals Service (the USMS). Every April 15, we pay our taxes to the Internal Revenue Service (the IRS, founded 1862). The Food and Drug Administration (the FDA, created 1906) approves the medications and vaccines we take, including the COVID-19 vaccines that former President Trump ordered in 2020 in what he called Operation Warp Speed. The Federal Bureau of Investigation (the FBI, established 1908) investigates suspected federal crimes. The Environmental Protection Agency (the EPA, 1970) protects our air and water. And many more.
The problem is that the initial congressional enabling legislation was not always clear about the extent of agency authority, especially as times and circumstances changed. Laws are written in broad terms, leaving it to federal regulators to write and implement the rules as new challenges arise, unanticipated by the law’s original drafters.
It is part of a legal area known as administrative law. As Justice Antonin Scalia told Duke University Law students in an address, “Administrative law is not for sissies — so you should lean back, clutch the sides of your chairs, and steel yourselves for a pretty dull lecture.” It covers a vitally important area that affects our daily lives.
The challenge to the authority of regulatory agencies has its origins in a 1984 Supreme Court case. The Clean Air Act in 1970 established a permit program for power and manufacturing plants to achieve national air standards. The 1977 amendment empowered the EPA to allow plants to install or modify one piece of equipment without a permit if the alteration did not increase the total emissions from the plant. The Natural Resources Defense Council objected to the rule, and filed suit.
The council demanded that all plants producing emissions apply for a permit. In Chevron USA v. Natural Resources Defense Council, the court unanimously ruled that the EPA’s decision was a reasonable interpretation of the law, given the training and expertise of EPA scientists. Since 1984, this has been known as the “Chevron deference.”
The decision gave the federal agencies broad authority to make rules if they were reasonable interpretations of the law. Justice John Paul Stevens wrote in his opinion for a unanimous court that the public must “properly rely upon the incumbent administration’s views of wise policy to inform its judgments.” The decision was grounded in two reasons: the expertise of agency personnel, and their accountability as public employees.
Justice Scalia endorsed the Chevron deference in an influential 1989 Duke Law Journal article: Its “broad delegation to the Executive is a hallmark of the modern administrative state,” because it provides a dependable “background rule of law against which Congress can legislate.” He argued that it “reflects the reality of government, and thus more adequately serves its needs.”
But now, it is under attack in the Supreme Court. Although they usually emulate their late mentor Scalia, two current justices, Clarence Thomas and Neil Gorsuch, oppose the Chevron deference. They argue that if Congress has not specifically empowered an agency to act in a certain arena, the agency is powerless under the so-called “major questions doctrine.” Only Congress can make decisions that have “vast economic and political significance.”
Recently the court combined two challenges to the Chevron deference. Both cases involve a dispute about whether the National Marine Fisheries Service (the NMFS) has the authority to require fishermen to pay for federal observers on board to ensure they do not overfish the waters: Loper Bright Enterprises v. Raimondo, and Relentless Inc. v. Department of Commerce. This low-level question hardly involves “vast economic and political significance.”
If the court overrules or narrows the Chevron deference, Congress will have to foresee every possible contingency that an agency faces in the future, a real impossibility given the rapidity with which change will occur over the next 50 years. Congress would become a rulemaker for all laws, and would legislate on questions like these: How much nitrogen may a wastewater treatment plant discharge? How should a hearing be conducted when coal mine workers apply for disability benefits?
It is foreseeable that courts would be overwhelmed with lawsuits requiring judges to litigate matters beyond their expertise.
Having scientists, technicians, and legal experts interpret the law to implement them in meaningful ways makes sense in the 21st century. Overruling or narrowing the Chevron deference, as the Biden administration’s brief put it, “would be a convulsive shock to the legal system,” and “threaten settled expectations in virtually every area of conduct regulated by federal law.”
Though, as Justice Scalia said, administrative law is not for sissies, it is something we must follow until the two cases are decided by June of next year.
Jack Fruchtman, who lives in Aquinnah, is preparing a fourth edition of “The Supreme Court and Constitutional Law.”
