Two Mistakes

The Chevron Deference “rule,” which the Supreme Court coalesced out of the æther in its 37-year-old Chevron v Natural Resources Defense Council ruling, comes up again in this year’s American Hospital Association v Becerra case, which centers on Medicare’s drug reimbursement schedule for hospitals.

The Supremes invented a two-step evaluation of Executive Branch agency rules in that Chevron case:

First, courts are to give effect to the “unambiguously expressed intent of Congress.” Second, if a court finds that the statute is ambiguous…then it is bound to respect any plausible agency interpretation.

The second step contains the two mistakes, a remarkable achievement even for the activist Court that dreamed up the process.

First, if a court finds that the statute is ambiguous, then the court has no other option, under each of our Constitution and the judge’s/Justices’ oaths of office, to strike the statute as unconstitutionally ambiguous. It has no need, it cannot, then reach that second bit.

Second, a court is not at all bound to respect any plausible agency interpretation. Far from it. In evaluating an agency rule or regulation—having found the statute constitutionally clear—any court must, by the Supreme Court’s rule, treat the unambiguously expressed intent of Congress as their limit. From that, a court must evaluate, de novo, the rule or regulation for whether it fits within the clear confines of the statute.

There can be no deference to another branch of government, much less to a subordinate agency of another branch, if judges of the judicial branch are to be faithful to our Constitution’s construction of three coequal branches of government, rather than to, say, the British construction of the judiciary being subordinate to another branch (Parliament in the British construction).

If the Supreme Court is to satisfy its function in AHA, it must rescind, reverse, root out to every jot and tittle Chevron Deference (and all other deferences, vis., Skidmore, City of Arlington v FCC‘s Arlington, etc) and evaluate the Becerra rule on the basis of whether the governing statute truly is unambiguous and if so, then on the fit of Becerra’s rule within that statute.

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