Chevron doctrine wouldn’t exist but for Supreme Court

The Supreme Court is weighing the future of “Chevron deference” — a doctrine of the court’s own devising that has given government agencies expansive freedom to make public policy. If this strikes you as an arcane legal debate of no great moment, think again. It’s a matter of great political and economic significance. Thousands of regulations and a potential torrent of litigation turn on the outcome. Unfortunately, the discussion is being framed too narrowly.

Lawyers and officials (who are very often also lawyers, this being America) are preoccupied with whether judges or technical experts are better equipped to design regulations. A weighty question indeed. But it arises because legislators write laws that are so vague that courts, officials and contending litigants are left to work out what they mean. If the Supreme Court’s eventual ruling on Chevron does cause a regulatory train-wreck, which is entirely possible, put the blame where it belongs — with Congress.

Chevron — the most cited case in US administrative law — was about the correct interpretation of the Clean Air Act. In 1981 the Environmental Protection Agency proposed a regulation that let polluters group different sources of emissions together as a single “stationary source.” The Natural Resources Defense Council called for judicial review, saying the law required that parts of a plant, as opposed to the plant as whole, had to be regulated separately as stationary sources if their emissions were big enough to qualify. In 1984 the court unanimously upheld the EPA’s position, not on the grounds that it was a correct or wise reading of the law, but because it was a “permissible construction” of an ambiguous statute.

Since then, permissible constructions of ambiguous statutes have proliferated — and the result is the modern and vastly expanded administrative state. Ironically, the original Chevron case was a win for advocates of lighter regulation. What many failed to see during the Reagan years is that, over time, Chevron and other forms of judicial deference would push so strongly the other way. Regulatory agencies tend to favor regulation: It pays their salaries, grows their headcounts and adds to their political weight. Generally speaking, their permissible constructions prefer more regulation to less. Who’d have thought?

The case now before the Supreme Court is about a rule that tells commercial fishing boats to carry government inspectors. The controlling statute declined to specify who should pay for them. The relevant agency says it’s the fishing companies; the fishers say it’s the government. In earlier cases, the court has vacillated on how much deference is enough; individual justices have also gone back and forth. Lately the court has expressed skepticism about regulatory deference and trimmed it here and there. It might be ready to use this latest case, if not to overthrow Chevron, then at least to cripple it. (Justice Neil Gorsuch advocates clarity on the matter — “a tombstone no one can miss.”)

Where most commentators stand on this has little to do with constitutional propriety and everything to do with their political preferences, who’s in the White House and who’s on the Supreme Court. With President Joe Biden in the Oval Office and conservative justices in the majority, Democrats favor judicial deference and want the executive to get on with their conception of good government regardless of what the law supposedly requires; meanwhile, Republicans bleat about democratic accountability. If Trump should prevail in November, those positions will reverse.

Lawmakers can’t avoid all ambiguity, and when it arises, a degree of judicial deference is surely desirable. Agency experts know more about their policy domains than do judges, and at one remove top agency officials are somewhat politically accountable via the appointments process. At the same time, though, ambiguity and deference have steadily and undeniably shifted political power away from Congress. The country has reached a point where the EPA can choose whether and how quickly to phase out gas-powered vehicles while Congress watches impotently from the sidelines — a result that might surprise any framers of the Constitution still paying attention.

The real scandal in all this is the leading role of Congress in its own disempowerment. Sometimes the legislative ambiguity that surrenders control is accidental — a mark of plain incompetence. Sometimes, it’s deliberate — a way to close down argument and get something, anything passed; or a way to reward legal, financial and other influential constituencies with fresh helpings of economic rent. Sometimes it’s all of the above.

Consider the tax code (though only for a moment, if you value your sanity). This masterpiece of endlessly iterating unintelligibility is as opaque to its designers as to its helpless victims. The tax-prep industry likes it, obviously. Big corporations and wealthy individuals can manipulate the ambiguity to splendid effect. For everybody else, it’s a colossal waste of money and effort. Could a code designed from the outset by judges, or by the Internal Revenue Service, conceivably be any worse than the one we have — tweaked by the courts and patched up by the IRS once Congress has periodically refreshed the underlying monstrosity?

Stronger democratic accountability has to originate from a Congress with the ambition to provide it. Such a Congress would strive for greater competence by demanding and rewarding more expertise among its supporting staff, refrain from creating jobs for lawyers and accountants feeding on ambiguity at the expense of the general public, and press for agreement among pragmatic moderates, ,not operatic polarization and facsimile law-making. The Supreme Court’s Chevron decision will be a big deal, but it isn’t going to solve the underlying problem.

Clive Crook is a Bloomberg Opinion columnist and member of the editorial board covering economics. Previously, he was deputy editor of the Economist and chief Washington commentator for the Financial Times. This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.