Congress must become a fortuneteller since Supreme Court knocked down Chevron deference

The Guardian or Authority of Law, created by sculptor James Earle Fraser, rests on the side of the U.S. Supreme Court on September 28, 2020 in Washington, DC. The U.S. Supreme Court Thursday evening allowed Alabama to execute a man on death row by nitrogen gas, a method never used before on a human being. Photo by Al Drago/Getty Images.

“Deference is appropriate where the relevant language, carefully considered, can yield more than one reasonable interpretation … Chevron is a recognition that the ambiguities in statutes are to be resolved by the agencies charged with implementing them.” — Justice Antonin Scalia ( 1991 )

Imagine you were born after July 1, 2024. You are reading this old Minnesota Reformer commentary in a hospital that, inexplicably, is devoid of all reading materials except for old paper copies of an online nonprofit news organization, a relic of an age when a functioning federal bureaucracy could protect the health, safety, and welfare of all Americans.

Because you were born after July 1, 2024, foundational aspects of federal administrative law no longer exist and, as result, federal regulations have been court-regulated out of existence.

You might be hospitalized for several reasons:

1. You have severe food poisoning. (Government agencies can’t regulate a new food because Congress wrote ambiguous laws and the Supreme Court prohibits agencies from interpreting these ambiguous laws.)
2. You are suffering from heatstroke because your employer doesn’t have adequate protections for its workers. (A federal worker-safety regulation would be, according to the Supreme Court, a “major question” of “vast economic and political significance” and Congress hasn’t “clearly” given authority for this regulation.)
3. A drone crashed into your house and almost severed your arm. (As the Supreme Court said with abortion, there isn’t an American tradition of regulating drones, so regulations aren’t allowed.)

Best of luck with your ailment.

Hating regulations isn’t new

You are hospitalized because the Supreme Court’s 2023-24 term finally dismantled the administrative state. While this dismantling only cements the Roberts Court’s supreme animus against administrative agencies, this animus isn’t new. For decades, conservative scholars have been apoplectic toward federal agencies, with prominent scholar Philip Hamburger arguing that administrative regulations are unconstitutional.

The crusade against administrative agencies will continue, with a powerful push for courts to strictly interpret the nondelegation doctrine, or the idea that the separation of powers precludes Congress from giving regulatory authorities any law-making authority.

Punishing agencies because Congress isn’t a fortuneteller

While administrative agencies may continue to rot on the vine, let’s look at what has come to pass for them in the last year under the Roberts Court:

• Agencies can no longer interpret ambiguous statutes, what was known as the Chevron doctrine (expect the court to eventually strike a similar precedent allowing agencies to interpret their own ambiguous regulations).
• Agencies can also no longer adopt regulations on major questions of vast economic and political significance if Congress didn’t clearly authorize the regulations (note the irony of this subjective standard).
• Aggrieved parties can challenge agency regulations when they are injured, not according to long-standing statute-of-limitations concepts under the federal Administrative Procedure Act.

So what is a reasonable solution to these boa-like constrictions? One solution could have Congress draft better laws. But have you ever read a federal law? Save yourself, and don’t start.

But even if Congress could improve its drafting prowess, no drafter, no matter how skilled and experienced, can completely eliminate gaps, vagueness or ambiguities in language. Language is inherently vague, and all writing has vagueness that leaves room for interpretation (read the Constitution). And vagueness can even be a conscious choice by the drafter to ensure flexibility and allow for meaning to change as society changes.

Furthermore, Congress isn’t a fortuneteller, able to completely predict new or unexpected developments in law. But Congress will have to be a fortuneteller — in addition to suddenly learning how to draft plain legal language. Gulp.

Who is the subject-matter expert?

The Roberts Court believes that courts, not administrative agencies, should interpret laws. Most would agree with this premise. But regulations are complex and intertwine with, in, around, and through multiple agencies, addressing highly technical and specialized issues. The critical question is, who is responsible for interpreting ambiguous and technical language? The Roberts Court says it’s not the subject-matter experts, but the courts, which now fill the role of machine-gun experts, environmental scientists, historians, and much more.

Yet as reported by the New York Times , the court just had to correct a June opinion “blocking a Biden administration plan to combat air pollution, [in which] Justice Neil M. Gorsuch had repeatedly referred to nitrogen oxide as nitrous oxide.”

Nitrous oxide is laughing gas. The new scientists have some learning to do.