Last week, the Supreme Court heard nearly four hours of argument in two cases addressing the question of whether courts should defer to executive branch agencies in interpreting and applying federal law [“The empty case against the administrative state,” editorial, Jan. 21]. The justices managed to ignore completely the elephant obviously hovering over the room: Given the fact that our badly divided Congress, held hostage by radical factions, is incapable of even funding the government, much less making policy decisions of any consequence, power to make policy must reside either in the elected executive branch or the politically unaccountable judiciary. This is what these cases are fundamentally about.
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The Chevron deference is desperately needed
If the court decides to throw out the long-standing Chevron doctrine, as it seems determined to do in these cases, the court will no longer defer to the executive for policymaking but will rather abrogate all policymaking power to itself. Given the increasingly ostentatiously political nature of the courts, this will mean that the judiciary (not just the Supreme Court but also the even more political lower courts) will become our most powerful political branch. No one can seriously argue that this is what the Founders intended when they drafted Article III, but this seems to be where we are.
Timothy Stoltzfus Jost, Harrisonburg, Va.
In its 1984 Chevron v. Natural Resources Defense Council decision, the Supreme Court ruled unanimously that courts should defer to the implementing agency’s reasonable interpretation of a statute when the statute is ambiguous. Chevron is now under attack, blamed for inducing Congress to shirk responsibility and delegate too much authority. If the court overrules Chevron, the claim goes, Congress will sober up and draft more precise laws.
Our polity is facing a worrying level of dysfunction. But as one looks around the government for leverage points to take us to a better place, Congress doesn’t leap to mind. Too many members see Congress as merely a stage for sound bites designed to ignite anger and thwart solutions, rather than a place to negotiate needed policy.
Chevron’s critics invoke Chief Justice John Marshall’s famous dictum that says “it is emphatically the province and duty of the judicial department to say what the law is.” But Marshall never suggested that this interpretive job is exclusive to the judiciary. Such a stance would be ridiculous. Whenever a regulatory law is enacted or amended, both the implementing agency and the affected public will need early guidance on what the law is. Since the earliest days of our republic, executive branch agencies inescapably have had to make determinations of what the law is, long before courts have a chance to pronounce.
The original Chevron decision recognized this reality by encouraging reliance on agency expertise in the course of statutory implementation, while still providing a measured role for court review.
It shouldn’t be discarded.
David A. Martin, Charlottesville
The writer was general counsel to the Department of Homeland Security and the Immigration and Naturalization Service.