After brushing off the “absurd” claim that people could die if Judge Brett Kavanaugh is confirmed as a Supreme Court justice, Sen. Ben Sasse (R-NE) launched into a lengthy critique Tuesday of how power has shifted, in his diagnosis, from the legislative branch to the executive branch — and how the judicial branch could provide the fix.
The problem, he said, is that lawmakers are writing vague laws, leaving too much unspecified so that “alphabet soup agencies” can fill in the blanks. “What we mostly do around this body is not pass laws,” he said of the Senate. “What we mostly do is decide to give permission to the secretary or the administrator of the bureaucracy X, Y, or Z to make law-like regulations.”
This is not how things are supposed to work, he said, invoking Schoolhouse Rock. The cartoon did not describe a role for rogue bureaucrats.
What Sasse is talking about, in a roundabout way, is the issue of the Chevron doctrine (also called Chevron deference). First outlined by now-retired Supreme Court Justice John Paul Stevens, the doctrine lays out when the judiciary should defer to executive branch agencies’ interpretation of congressional statutes. Chevron has, in recent years, become something of a conservative hobbyhorse, and inspired particular outrage during the Obama administration.
The doctrine comes from a 1984 Supreme Court ruling, Chevron USA v. Natural Resources Defense Council. The case required the court to sort out what the EPA was allowed to do under the Clean Air Act.
“First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter,” Justice Stevens wrote. But if the legislation in question is “silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”
That means that if Congress isn’t specific in its legislating, the agency can interpret the law in order to write rules — within reason. It’s up to the courts to decide what “within reason” means, and Republicans want to see judges get a lot more conservative about how much leeway a regulatory agency has — or do away with Chevron entirely.
This has particular importance for the EPA. During the Obama years, Republicans were outraged by the way in which the agency used the Clean Air Act to create policies aimed at addressing climate change; the Clean Power Plan, recently replaced by Andrew Wheeler’s EPA, is one such example.
No longer giving deference to agency interpretations would shift the balance of power, conservatives argue, from bureaucrats to Congress. It would also empower the increasingly conservative federal judiciary and have wide-reaching implications, from labor regulations to consumer financial protections to immigration to net neutrality.
The limitations regulatory agencies would experience if Chevron were tossed out or weakened would be acutely felt when Democrats next control the executive branch.
Kavanaugh has been a particular opponent of the Chevron doctrine, and Democrats are circulating a speech he gave at Notre Dame in 2017 in which he said that “the Chevron doctrine encourages agency aggressiveness on a large scale. Under the guise of ambiguity, agencies can stretch the meaning of statutes enacted by Congress to accommodate their preferred policy outcomes. I saw this firsthand when I worked in the White House, and I see it now [as] a judge.”
During Wednesday’s questioning, Democrats will likely want to find out whether Kavanaugh would rethink Chevron, or do away with it entirely, as his fellow Trump nominee Neil Gorsuch has said he would.