James Pfister: Is the Chevron Doctrine a better solution?
John Marshall wrote these famous words in Marbury v. Madison (1803): “It is emphatically the province and duty of the judicial department to say what the law is.” He continued: when a case is before the court, the court must decide what law applies and any hierarchy. This is the foundation of judicial review.
What if the case is before an administrative agency: Who determines the law then? The agency would look to the Constitution, the statutory law (the general laws legislatures pass), or to judiciary case law. But under the Chevron v. Natural Resources Defense Council (1984), the agency may look to itself, if the judiciary has deferred or Congress has delegated law interpretation to the agency. This would be because the law is ambiguous, there is a gap in the statute, or it appears that Congress has impliedly delegated the interpretation to the agency. This is Chevron deference. Especially technical matters are subject to Chevron deference.
The issue is raised this term in the fishing case of Loper Bright Enterprises v. Raimondo. The administrative agency had issued a rule by which the fishing businesses had to pay for federal observers on the boats to make sure they complied with the law. The businesses, legally represented by the well-known constitutional litigator Paul Clement, not only objected to the rule but also to the power of the agency to make the rule in our separation of powers system.
They claimed the Chevron deference doctrine which was the basis for an agency to make such a rule violated separation of powers in the Constitution. Our governmental solicitor general representing the Biden Administration, Elizabeth Prelogar, argued we should keep the Chevron doctrine where it is. The case is as important to our system as was Marbury v. Madison (1803).
What is separation of powers? Congress makes the statutory law under Article I; the president and his administration under Article II carry out executive orders in their own right in the article and by regulations done by a delegation from Congress; and the Judiciary deals with cases and controversies emanating from the system in Article III; the Judiciary is non-political; the President and Congress are political. With a broadening of the administrative power to interpret Congressional statutes and to make regulations we have the rise of the Administrative State, exemplified by the Chevron deference, which, I believe, is the natural outcome for a large and complex society, with a weak Congress. This has been an evolution.
When a new presidential administration takes over, change occurs in the administrative state to reflect the ideology of the new President. Appointments are made to carry out that ideology. This is an exercise in democracy. The administration is made up of experts, many of whom have made that agency their career. Henry Kissinger once said that administrative experts have often had more years to study a problem than the politician has had hours to study it. They represent the power of expertise. Democracy and expertise make a good combination.
My thesis is that Chevron deference to administrative agencies in the interpretation of statutory law promotes both expertise and democracy. This is a healthy evolution for our separation of powers system and allows us to keep up in the modern world. Justice Stevens wrote in Chevron: “Judges are not experts in the field, and are not part of either political branch of Government ... an agency to which Congress has delegated policy-making responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration's views of wise policy to inform its judgments. While agencies are not directly accountable to the people, the chief executive is, and it is entirely appropriate for this political branch of the government to make such policy choices — resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities.”
All three separation-of-power organs retain their powers. They simply defer in some areas to administrative legal, engineering, and scientific expertise. Expertise is power, to be used for the common good. This is subject to a reasonableness test.
— James W. Pfister, J.D. University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the Political Science Department at Eastern Michigan University. He lives at Devils Lake and can be reached at jpfister@emich.edu.
This article originally appeared on The Holland Sentinel: James Pfister: Is the Chevron Doctrine a better solution?
