The Supreme Court recently heard oral arguments in American Hospital Association v. Becerra, which is ostensibly about payments hospitals receive under Medicare. But lurking beneath the surface are deeper issues involving a judge-made administrative doctrine known as “Chevron deference,” which essentially transfers Congress’ legislative powers and federal courts’ authority to call balls and strikes to unelected, politically unaccountable bureaucrats.
How did this happen? After all, our system of government relies on the consent of the governed memorialized in the U.S. Constitution. And as set forth in the Constitution, the people have agreed on a system of separated powers, in which the legislative, executive, and judicial branches function as checks and balances on one another.
To protect liberty, the Constitution tasks the democratically elected, politically accountable branches (Congress and the president) with resolving difficult and important policy questions through the deliberately arduous legislative process. The Constitution further requires that before becoming law, legislation must win votes in both chambers of Congress and be signed by the president.
These constitutional accountability checkpoints purposely make it hard to enact legislation, to guard against oppression and ensure that federal law reflects a genuine national consensus, as opposed to the desires of a fleeting bare majority.
This also means that the people know exactly who to hold accountable at the ballot box for unpopular, failed policy choices.
And when legal disputes arise about the meaning of federal statutes, the Constitution tasks federal courts with independently saying what the law is in individual cases.
The Constitution does not grant legislative or judicial powers to the executive branch, nor does it permit the sub-delegation of these powers to administrative bodies. For good reason. As James Madison famously wrote in Federalist No. 47, “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.”
But over time, judicially developed “deference” regimes have emerged that effectively transfer core judicial and legislative power to the bureaucracy, putting a thumb on the scale in favor of the nation’s most powerful litigant — the federal government — thereby rigging the game against the American people.
Most prominently, in 1984, the Supreme Court ruled in a case called Chevron v. Natural Resources Defense Council that when Congress writes vague laws (as it often does) this somehow transfers to federal agency officials legislative and judicial powers.
The Chevron theory claims that when Congress drafts “ambiguous” statutes, it implicitly transfers to administrative agents the authority to make generally applicable (and sometimes retroactive) “legislative rules” with the “force of law,” to which federal courts are then generally obligated to “defer” in any legal challenge to the government’s actions. This means that federal bureaucrats are allowed to make “law” through issuing regulations and then to act as judge in their own cause by telling the federal courts what the law is.
This extraconstitutional power transfer is profoundly undemocratic and in serious tension with the Constitution’s promise of representative self-government.
The judge-made mid-’80s-vintage Chevron regime also harms our constitutional republic by allowing members of Congress to avoid making politically difficult decisions by enacting vague laws and passing the buck to federal agencies to set public policy.
In this way, Congress avoids accountability for tough policy choices — and the actions of federal agencies — and can instead engage in finger pointing. Indeed, today’s political climate may well be attributable, in part, to cases like Chevron that authorize the blending of the legislative, executive, and judicial powers into various administrative bodies.
The Supreme Court should end this and enforce the separation of powers required by the Constitution. And American Hospital Association v. Becerra provides the Court with an ideal opportunity to do so by overruling Chevron before its fortieth anniversary.
Ordinary citizens deserve to be on equal footing with the government in legal disputes. And we deserve to be governed by our elected representatives in Congress, as opposed to unknown, unelected administrative officials using inherently undemocratic and unaccountable rulemaking processes to “enact” major regulations with “force of law.”
Perhaps if Chevron is overruled it would incentivize, if not force, members of Congress to work together again in a collegial, constructive way to address the federal public policy challenges our country faces through sensible, consensus-based legislative solutions. That would not be a bad thing.
Michael Pepson is regulatory counsel at Americans for Prosperity Foundation.