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The Supreme Court will soon decide a case that strikes at the very core of America's governmental structure: should the three branches—executive, legislative, and judicial—have equal powers, or will one branch be allowed to run roughshod over the other two—and the American people in the process?
In January, this issue was argued in two related cases, Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises, Inc. v. Raimondo. These cases will determine whether a federal agency overstepped its bounds by requiring fishermen to pay the cost of having federal observers on their boats, even though Congress never explicitly authorized that requirement. But there is a bigger issue at stake with implications far beyond fishermen. The cases are a test of Chevron deference, a consequential legal principle that compels federal courts to defer to federal agencies' interpretations of the statutes they implement.
That's a lot of legal talk that boils down to this: Chevron deference multiplies the power of federal agencies and undermines the principle of separation of powers.
The Supreme Court established Chevron deference almost 40 years ago in the case of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., when it ruled that Congress had delegated clean air policymaking power to the Environmental Protection Agency (EPA). For four decades, administrations have used this precedent to issue an ever-growing number of regulations without clear backing in the laws written by Congress.
Chevron deference has eroded the responsibility of the legislative branch. Put another way, it encourages lawmakers to hit the easy button. What do I mean by that? The more specific a bill is, the more difficult it can be to pass in Congress. It's easier to pass vague laws and leave it to federal agencies to sort out how to implement them. But the heads of federal agencies are not elected by the people nor held accountable by voters, so conveying such power to them puts our government out of balance.
Chevron deference has also weakened the power of the judicial branch to check agency overreach. Under Chevron, lower court judges must defer to the legal interpretations of federal agencies even when the judges read the law differently.
In essence, Chevron deference has created a super-branch of government—the agency responsible for enforcing the law also has broad discretion to decide what the law means.
One doesn't need to look much further than the Waters of the United States (WOTUS) Rule to see the damage done by Chevron. Over the years, EPA has finalized multiple conflicting rules that at times clearly exceed the authority Congress granted it under the Clean Water Act. Some of these rules were broad enough to regulate low spots in farm fields miles from any actual waterways. Over the course of three presidential administrations, EPA published three sets of rules in just eight years, with farmers, homebuilders, states, and local governments left in constant regulatory uncertainty.
Ultimately, the Supreme Court struck down a key part of the most recent WOTUS Rule in a unanimous decision, with stern admonishment of the agency for exceeding its legal authority. Although the High Court eventually checked EPA's overreach, lower courts for years deferred to EPA's expansive view of its own power. Meanwhile, farmers labored under a cloud of doubt and fear.
Just as the Founding Fathers expected, it turns out that super-branches of government do not govern well. Knowing their decisions will be shielded by deference from the courts, agencies are emboldened to adopt expansive interpretations of their own power. They have little incentive to carefully analyze and adhere to the best reading of the statutes enacted by Congress, because even a stretch will likely be upheld by the courts.
There needs to be a change. Twelve states have already scaled back on deference to agencies within their own borders, now requiring courts to review state rules without automatically deferring to the regulating agency. Several U.S. Supreme Court rulings have signaled that Congress must return to a more prominent role in drafting the laws that govern America.
Our Constitution created a system of checks and balances among three branches of government to prevent any one branch from becoming too powerful. The legislative branch creates the laws, the executive branch enforces the laws, and the judicial branch interprets the laws. The Supreme Court upset the balance with Chevron. It's time to bring the balance back.
Zippy Duvall is the president of the American Farm Bureau Federation. He is a third-generation farmer from Georgia where he raises beef cattle and chickens and grows hay.
The views expressed in this article are the writer's own.
