If you took high school civics, there is a good chance you’ve heard the phrase “coequal branches of government.” It’s such a common formulation for America’s separation of powers that it’s easy to slide into the false belief that each branch of government is equal in authority to the others.
Even if the president takes the exceptional step of vetoing a bill it has passed, Congress has the power to override that veto. And the Constitution gives Congress immense power over the federal judiciary. Congress defines the number of judges and justices, sets their compensation and defines the full extent of their jurisdiction.
Not only is Congress the most powerful of the three branches of government, it’s also the branch closest to the people. Members of the House and Senate are elected by popular vote, and members of the House run for election every two years. By contrast, no American ever votes for a single federal judge — let alone a Supreme Court justice — and the Electoral College distances the presidency from majority rule to such an extent that the last two Republican presidents entered office having failed to win the popular vote.
And indeed there is a compelling logic in the most powerful branch also being the branch closest to the people. It builds popular support for public policy, and it provides Americans with the crucial sense that they are participants in American democracy, not mere observers of the machinations of a distant government elite.
But by now you most likely see the problem. Congress is not performing its constitutional tasks. It’s a broken institution that contains too few genuine lawmakers and far too many would-be activists and TV pundits. Time and again, it has proved incapable of compromise or of accomplishing even the most basic legislative tasks. It’s been 27 years since it even passed a budget on time. And that barely begins to capture the current level of dysfunction, with a razor-thin House Republican majority consistently held hostage by a mere handful of MAGA extremists.
As Congress has shirked its duties, presidents and the courts have filled the power vacuum. Presidents have used the power of their executive agencies to promulgate new regulations without congressional involvement. Executive agencies publish 3,000 to 4,500 new rules per year, and these regulations have a substantial impact on the American economy. Compounding the problem, courts have ratified that presidential power grab by enacting a series of judge-made rules that require federal courts to defer to the decisions of executive agencies.
The most important of those judge-made rules is called “Chevron deference,” named after the 1984 Supreme Court case Chevron v. Natural Resources Defense Council. The case involved a highly technical dispute over the meaning of the term “stationary source” under amendments to the Clean Air Act. Congress did not define the term, so the E.P.A. defined it for itself. The question at issue was whether the court should defer to the agency’s interpretation or interpret the statute itself.
The court chose to defer to the E.P.A., and it established a default rule of deference going forward. If the statute an agency administers is “silent or ambiguous with respect to the specific issue,” the majority held, “the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”
The justification for Chevron deference is compelling, at least on the surface. Agencies regulate some of the most complex businesses and industries in the United States. They possess a level of expertise that’s clearly beyond the capabilities of Congress. Why not defer to their determinations? Isn’t that simply wise?
But what might be wise in specific, highly technical circumstances can be very problematic when adopted as a general rule, as the Chevron doctrine has been. Chevron disrupted the constitutional order by effectively giving the president the power to make, interpret and enforce laws acting solely through his administrative agencies. It injected the presidency’s lawmaking abilities with steroids.
This is not the way the United States was intended to function. It magnifies the power of the president beyond recognition, diminishes democracy, raises the stakes of presidential elections to destabilizing levels and puts immense pressure on the president to maximize his rule-making authority. Just as bad, it encourages congressional inaction and incompetence. If the agencies can take over when Congress is silent or ambiguous, it diminishes the necessity for Congress to speak clearly. It’s much easier to punt the hard decisions to the president, and then heckle (or cheer) from Fox News or MSNBC.
How have we seen this dynamic play out? Three consecutive administrations — Obama, Trump and Biden — have attempted radically different immigration reforms through executive action rather than through legislation. We’ve also seen the Obama, Trump and Biden administrations enact or propose divergent rules and regulations on sex discrimination under Title IX. We’ve witnessed President Biden attempt to forgive student loans and mandate workplace vaccinations through executive action. [ed. I think this all really started with Reagan].
These policy disputes and policy shifts have very little to do with “agency expertise” and everything to do with presidential ideology. The language of Title IX or of federal immigration statutes isn’t changing, but the ideological commitments of the president do, and the president is then using his rule-making authority to alter the law. The same law shouldn’t mean wildly different things based on the whim of a president.
Wednesday’s oral argument signaled that America may be on the verge of a welcome restoration of proper constitutional order. The case is called Loper Bright Enterprises v. Raimondo, and the facts are both simple and representative of how the Chevron doctrine distorts American law. The plaintiffs are fishing companies that are challenging a federal rule that requires them to pay the cost for federal observers who board their boats and observe their compliance with federal fishing rules. (...)
The question isn’t how much power the government should possess, but rather who should possess it. And it’s far from clear to me that it’s inherently “conservative” or “Republican” to say that Congress, the most democratic branch of government, should possess more power than the president. Indeed, a number of conservatives adhere to a theory of presidential power called the “unitary executive” that often means the opposite, increasing executive authority at the expense of Congress.
Moreover, reversing Chevron wouldn’t end executive rule-making. Nor would it block Congress from explicitly granting agencies a degree of discretion based on agency expertise. It would instead roll back the president’s extraordinary dominance. Do we really want to maintain a system that enables a man like Donald Trump to eclipse both Congress and the judiciary?
Americans feel alienated from their government for good reason. Democracy feels more distant because it is more distant. Decades of congressional failure have diminished congressional power and placed it in the hands of presidents and their army of unelected administrators. We need to reverse bad precedent. Regardless of whether one is for big government or small government, we should all be for democratic government, and that — at the very least — requires Congress to do its job.
Moreover, reversing Chevron wouldn’t end executive rule-making. Nor would it block Congress from explicitly granting agencies a degree of discretion based on agency expertise. It would instead roll back the president’s extraordinary dominance. Do we really want to maintain a system that enables a man like Donald Trump to eclipse both Congress and the judiciary?
Americans feel alienated from their government for good reason. Democracy feels more distant because it is more distant. Decades of congressional failure have diminished congressional power and placed it in the hands of presidents and their army of unelected administrators. We need to reverse bad precedent. Regardless of whether one is for big government or small government, we should all be for democratic government, and that — at the very least — requires Congress to do its job.
by David French, NY Times | Read more:
Image: Damon Winter/The New York Times[ed. Ok, I'm officially changing my mind (people are allowed to do that, you know). This is a very persuasive argument that I've never heard before. I do believe in leaving regulatory expertise to the experts, but Mr. French is right, new administrations frequently impose whiplash changes to administrative policy that make regulatory oversight a joke. You know, there are a lot people who are paranoid about a Deep State in government. Well, it's true, it does exist but what they call a Deep State is really just a deep bureaucracy, and it's absurd to think that it's in any way coordinated toward some single purpose. Government is a system of competing checks and balances and different agencies reflect those tensions. When a new administration comes in, one agency or another may find itself in ascendancy while others get sidelined - and those temporarily in power exert their influence while they have it. Are there likely to be unfortunate consequences of changing Chevron? Probably. Should we do it? I don't know. But things aren't working now, so what are the alternatives?]
