Undue Deference

For the second time in two years, President Trump has nominated a justice to the Supreme Court of the United States. His selection of Brett Kavanaugh, like the selection of Justice Neil Gorsuch before him, shows the White House’s commitment to selecting judges “devoted to a legal doctrine that challenges the broad power federal agencies have to interpret laws and enforce regulations,” as the New York Times has put it.

If confirmed, that devotion may be quickly tested. Led by Texas, 17 states have urged the Supreme Court to take up California Sea Urchin Commission v. Combs and end Chevron deference — the Court’s controversial and unconstitutional practice of deferring to agencies on the meaning of statutes, rather than having independent judges interpret the law.

For too long, the states argue, the convenience of bureaucrats has been weighted more heavily than fairness to the American people.

“It is doubtless convenient for federal agencies to have little restraint on their interpretation of federal law; to be able to change their minds at any time, for any reason; and to receive deference even for interpretations expressed retroactively,” the states acknowledge. But “there is a price to be paid for these conveniences, and it is paid by those who are subject to the agency’s regulatory authority.”

California Sea Urchin Commission demonstrates just how far we’ve strayed from the Constitution’s design of courts subjecting government actions to fair, independent scrutiny. In 1986, Congress struck a compromise that would encourage the recovery of California’s sea-otter population while minimizing unnecessary impacts on fishermen. That compromise held for decades, during which the otter population increased dramatically.

But in 2012, a federal agency decided it no longer liked the deal Congress had struck. So it reinterpreted the compromise, concluding — conveniently — that the law allowed the agency to keep its benefits from the bargain while depriving the fishermen of theirs. Represented by Pacific Legal Foundation, the fishermen sued, arguing that nothing in the law passed by Congress gave the agency such power to rewrite the law.

With Kavanaugh on the bench, the Supreme Court may finally be ready to revisit Chevron and restore meaningful, independent scrutiny to the administrative state. 

Unfortunately, the Ninth U.S. Circuit Court of Appeals — which embraces blind deference to federal agencies with more zeal than most courts — concluded that this didn’t matter. The court ruled that a federal agency can do whatever it pleases, so long as there’s no law that explicitly forbids the precise action. The court gave no answer as to just how Congress was supposed to anticipate every novel idea an agency might dream up over decades.

With Kavanaugh on the bench, the Supreme Court may finally be ready to revisit Chevron and restore meaningful, independent scrutiny to the administrative state.

When courts reassert themselves and enforce the law as written by Congress, it “helps preserve the separation of powers and operates as a vital check on expansive and aggressive assertions of executive authority,” Kavanaugh wrote in a recent D.C. Circuit ruling. His concern makes him a fitting successor to Justice Anthony Kennedy, who, in one of his final opinions, urged the Supreme Court to “reconsider” the premises underlying Chevron’s “reflexive deference” to unelected bureaucrats.

Justice Neil Gorsuch, Trump’s first nominee, has argued that excessive deference to agencies replaces “an independent decisionmaker seeking to declare the law’s meaning as fairly as possible” (i.e., a judge) with “an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day.”

Chief Justice John Roberts has similarly raised an alarm about the concentration of power in administrative agencies and the lack of meaningful checks and balances. “The danger posed by the growing power of the administrative state,” the chief justice has cautioned, “cannot be dismissed.”

“We seem to be straying further and further from the Constitution without so much as pausing to ask why,” Justice Clarence Thomas has separately observed.

The fundamental principles underlying our Constitution are that government power must be divided up, rather than concentrated, and those who exercise it must be accountable to the people. It’s difficult to imagine a greater departure from these principles than the concentration of near-limitless power in the hands of unelected bureaucrats, combined with a lack of oversight from Congress and the courts.

With three sitting justices raising questions about Chevron deference and another on deck, it’s time for the Supreme Court to address the issue head-on.