Tag Archives: government

A Thought on Chevron Deference

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Chevron Deference is a Supreme Court-created doctrine flowing from an appeal by Chevron Corporation to NRDC v Gorsuch, in which the Natural Resources Defense Council, during the Reagan administration, sued the EPA over a then-newly enacted regulation that allowed manufacturing plants to get pollution emission permits for new equipment that didn’t meet EPA emission requirements so long as the plant’s total emissions didn’t increase following the new equipment’s installation.

The Supreme Court found for the NRDC in Chevron’s appeal (Chevron USA v NRDC) and in the process created their Chevron Deference doctrine.  The heart of the doctrine, as articulated by Justice John Paul Stevens in writing for the majority, is this two-part test [citation and footnotes omitted]:

When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions.  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; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute 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.

“The power of an administrative agency to administer a congressionally created…program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.”

Eliding the specifics of the case and appeal, what Chevron Deference says in essence is that the Court owes Executive Branch offices considerable deference in those offices’ interpretations of statutes and the regulations those offices implement to enact those statutes: the Courts’ opening position should be that those offices are correct in their interpretations and implementations.  The problem, though, is in Stevens’ last sentence and in the sentence he quotes:

…whether the agency’s answer is based on a permissible construction of the statute[,]

and

The power of an administrative agency to administer a congressionally created…program necessarily requires the formulation…of rules to fill any gap left, implicitly or explicitly, by Congress.

Here is what the Constitution has to say on…gaps:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Legislative powers—every single one of them—are the sole province of our United States Congress, and not any other body.  That Congress, too, consists solely of a Senate and House of Representatives; it does not include Executive Branch offices or Cabinets…or Agencies, administrative or otherwise.

What about those gaps in legislation?  All legislation, of necessity, fills gaps, whether those gaps exist de nihilo or they exist, or develop, as the law is seen in operation and/or as society evolves—else there’d be no legislation.  That includes, naturally, gaps in legislation.

When an (administrative) agency creates a rule to fill a gap in legislation that agency is authorized to administer, it is doing far more than formulating policy, or setting out rules for carrying into effect aspects of the legislation.  It’s legislating into that gap, which only Congress can (not may) do.

There’s also a problem with the concept of deference.  Regulating agencies are subordinate entities of the Executive Branch, and as such they cannot have any status but a subordinate one to each of the three branches of our Federal government.  From the other side of this relationship, the judiciary is a coequal branch of our Federal government, equal in status, hierarchy, and power and authority to each of the other two.  As such, Courts owe no deference at all to either of the other two branches, much less to agencies subordinate to either of those branches.  The mindset that the Courts do owe deference is a dangerous one.

The Chevron Deference doctrine is wrong.  The right answer for a Court in adjudicating a regulation has a different second step:

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 nearly the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress—so long as that intent is implemented in a constitutionally permitted manner, for if it has not then regardless of intent, the statute cannot stand.  If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, or allow an administrative interpretation to stand. Rather, if the statute is silent or ambiguous with respect to the specific issue, the answer for the court is to return the matter to the legislative (political) branch of the government so it can address what is strictly a legislative and a political question.

California’s Disdain

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…for religion is made manifest by its SB 1146, Equity in Higher Education Act, currently under consideration before the California Senate.

As it currently stands, parochial schools—church schools, religious schools, schools run according to a clearly stated set of religious tenets—are exempt from discrimination laws where such discrimination is centered on religious beliefs.  Schools and their students are free to follow their conscience and to require employees, and students, to adhere to certain basic sets of behaviors.  As Archbishop Jose Gomez and Bishop Charles Blake put it in their piece,

Current California law exempts religious schools from nondiscrimination laws in cases where applying these laws “would not be consistent with the religious tenets of that organization.”
…
For years now, this policy has worked well, enabling church-run colleges and universities to hire personnel and establish policies and expectations regarding religious practice and personal conduct that reflect their beliefs and values.

California State Senator Ricardo Lara’s (D) bill seeks to destroy this (Gomez and Blake are more polite about Lara’s motive and his bill’s overall impact.  I don’t agree, though, that Lara doesn’t understand what he’s doing).  His bill would only exempt seminaries or other schools that train clergy and ministers; it would rescind that religious freedom protection everywhere else.

Any other faith-based school that receives state monies or enrolls students who depend on the Cal Grants financial aid program would be forced to change their policies to accommodate practices that in some cases would be contrary to their beliefs and teachings.

Detailed provisions in the legislation include rules for bathroom use and sleeping arrangements in dormitories. The bill even has the government setting guidelines for what “religious practices” and “rules for moral conduct” will be acceptable on these campuses.

All in the guise of “protecting” individual choice.  Never mind, though, that Lara knows full well that those who wish to work or study at these schools are making their choice at that point.  Never mind, either, that Lara knows full well that his bill allows those who disagree with the school’s religious tenets can attend, or get hired, and then force the school to violate its own tenets to accommodate these.

Never mind, either, that Lara knows full well the damage his bill will do to those he claims to be trying to help, low-income and minority families—including millions served by our respective faith communities here in Los Angeles.  As Gomez and Blake note—and as Lara surely knows—60% of these religious schools’ students are minorities and nearly 90% need financial aid.  Aid that Lara’s bill would cut off unless these schools kowtow to his demands.

It shouldn’t take elders of the religious community to point this out.  Any lay person—me, for instance—can see this plainly.  Which means, in particular, that Lara, whose bill this is, sees it plainly.  And doesn’t care.

Keep in mind one other thing, too.  Rights granted by Government, or presumed granted by Government, can be withdrawn by Government, too, and at that Government’s whim.  Lara’s bill is a clear demonstration of that.

The Beginning

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…of another whitewash?  The IRS says it wants to look into claims of “pay to play” requirements perpetrated by the Clinton Foundation.

It’s an interestingly timed investigation.  Absolution of the Clinton Foundation could easily come this fall, in time to influence the election in November.

Commissioner John Koskinen wrote in a July 22 letter to Republican Rep. Marsha Blackburn [R, TN] that the issue has been “forwarded” to the IRS “Exempt Organizations Examinations” program in Dallas.

Why now, I ask again.  The IRS has known about these allegations for a long time.  Even The New York Times has been talking about this matter for some time.

A Liberal Justice Talked out of Turn

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Justice Ruth Bader Ginsburg now is in the business of publicly bashing politicians who don’t think like she does.

I can’t imagine what this place would be—I can’t imagine what the country would be—with Donald Trump as our president.  For the country, it could be four years.  For the court, it could be—I don’t even want to contemplate that.

We can also turn her remarks around.

I can’t imagine what this place would be—I can’t imagine what the country would be—with Hillary Clinton as our president.  For the country, it could be four years—or a dozen, with her insistence on extending Obama even further, and even farther left.  For the court, it could be—I don’t even want to contemplate that.

And Ginsburg had these gems:

I don’t expect that we’re going to see another affirmative action case [regarding Fisher v University of Texas, wherein Justice Anthony Kennedy gutted his own prior ruling in the case].  I think [Justice Kennedy] comes out as the great hero of this term.

And

It would be an impossible dream.  But I’d love to see Citizens United overruled[.]

The problem here isn’t that she’s engaging in political speech, though.  It’s that her political speech, because of her position and role in our Federal government—a Supreme Court Justice—means that whatever she says in the political arena can only prejudice all of her subsequent rulings.  With such political bashing, she’s predetermining her position on any case that comes before the Court, and not only those that might be brought under or by a Trump administration.

On the other hand, it’s good to know her prejudices—as well as those pre-written opinions on cases yet to come—beforehand, rather than discovering them in her opinions after the rulings have been announced.  Which emphasizes the importance of a question asked by a tweeter and quoted in The Washington Post piece at the first link above:

If there’s a redo of Bush v Gore, how does Ginsburg not recuse herself, given her Trump comments?

How, indeed?  Worse, how could we expect her to?

Two Mistakes

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…are made in a recent The Diplomat piece about the British referendum to leave the EU and our own Founders’ view of popular (direct) democracy.

One is the conflation of a single referendum with direct democracy.

[I]he whole spectacle of a referendum—a “device of dictators and demagogues,” in the words of Margaret Thatcher—underlined a salient point: our soundbite culture, combined with political populism, renders direct democracy in the form of a referendum entirely unsuitable as a tool for deciding complex policy issues.

Or any other culture, apparently.  Notice that, though: a referendum.  Not routine referenda for making all national decisions, which would be popular democracy governance.  No, this was a single referendum to make a single decision; it was no pattern, it set no precedent, and it was entirely appropriate.

This referendum was entirely appropriate because the representative democracy government was itself divided on the matter.

The referendum was especially appropriate for a much larger reason, though.  It’s entirely appropriate, necessary even, for the a representative government to go back to the people as a whole on occasion to get their instruction because that’s how the representatives as a whole (re)calibrate their ties to the people they claim to represent.

The other mistake is claiming that the people are just too stupid to make their own decisions; they need to listen to their Betters and otherwise be quiet.

The voices of reason were further drowned out….

And

T[he Brexit referendum illustrates as much the failure of the experts and elected politicians as it shows that relying on the masses and populism can lead to suspect and potentially damaging decisions. In that sense, we have to guard ourselves against direct democracy being hijacked by demagogues and populists lest we have to endure the “tyranny of the majority” at the expense of wiser policies.

This would be true of a direct democracy; however, see above: a single referendum does not make for a direct democracy means of governance.  The Diplomat‘s piece illustrates, on the contrary, the need for the occasional national referendum.  Experts are in a tizzy because the masses rejected their wisdom and made that damaging decision—at least in the minds of those Betters.  What a representative democracy must especially guard against, though, is being hijacked by demagogues and elitists lest we have to endure the tyranny of the Betters at the expense of the people.