Sunday, December 8, 2013

Should the Chevron Doctrine Be Done Away With? Questions Concerning the Administrative State

     On Tuesday, the Supreme Court will hear oral arguments in two cases which have the potential to shake up the current administrative state.  It is important to provide a background to the underlying precedents and implications of these cases being heard.  In a 1984 landmark case called Chevron v. Natural Resources Defense Council the Court created what is known today as the Chevron doctrine, which maintains that the courts defer to the agencies when statutory language is ambiguous.  The Court's reasoning was that since they are not experts, they cannot adequately interpret implementations of laws the agencies set forth - the agencies are the experts in their subject matter while the justices are experts of law.  This is also referred to as Chevron deference.
     In the first case to be heard on Tuesday, EPA v. EME Homer City Generation, the Court extended the oral argument to 90 minutes instead of the standard hour allowing each side 45 minutes.  This case is set to examine a provision in the Clean Air Act dealing with air pollution traveling to and from other states.  A brief background to the suit: through a policy known as the "good neighbor" policy, which aims to keep pollution created in one state from crossing state boarders, the EPA developed the "State Air Pollution Rule" or the "Transportation Rule" in which the EPA would develop standards for combating pollution and allow the states to exercise these standards as they saw fit.  The rule was designed to give "significant freedom" to the states.  In 2011, the DC Circuit Court blocked this provision and it never went into effect.  According to the DC Circuit decision, they believed the EPA did not "faithfully" execute the mandate as designed by Congress in 1990.
     The second case to be heard on Tuesday involves immigration visas.  In Mayorkas v. Cuellar de Osorio, the court will examine if the statute governing a provision referred to as the "aged out" mechanism affords the agency deference under the Chevron doctrine.  The petitioners are a family of immigrants who applied for visas, but during the backlog and waiting period for their visas to be processed, the children "aged out," meaning they turned 21, which means they are considered adults and their applications are then moved to the bottom of the adult visas list, despite having already waited a significant period of time.  In a decision issued by the Ninth Circuit who heard the case en banc, the language of the statute was clear, which would not afford the agency deference in interpretation and implementation.
     Lawyers for the United States contend the statute was ambiguous, which under the Chevron doctrine, would afford them deference.  According to Kevin Johnson, who previewed the oral arguments for, if the Court rules in favor of the United States in this case, it could lead to longer application processes and split families apart, which he asserts is contrary to the goal of the statute to keep families together. 
     The Chevron doctrine has been used several times since the landmark case and is almost a rubber stamp in challenges to administrative agencies.  Last term, the Court heard a challenge to administrative rulings in City of Arlington v. FCC.  In an opinion delivered by Justice Scalia, the Court upheld the Chevron doctrine and ruled in favor of the Federal Communications Commission.  In Chief Justice John Robert's dissent, he warned of the growing administrative state and its threat to our constitutional system.  He accused Scalia of siding with "big government" and stated, "With hundreds of federal agencies poking into every nook and cranny of daily life, [citizens] might …understandably question whether Presidential oversight— a critical part of the Constitutional plan—is always an effective safeguard against agency overreaching."
     The exponential growth of the administrative state has become an alarming concern for many.  In last week's hearing of the House Judiciary Committee on the President's Constitutional Duty to Faithfully Execute the Laws, witness and George Washington Law professor Johnathan Turley warned of the rise of what he calls the "fourth branch of government."  In fact, he asserted that if this fourth branch continues to grow, congress will be left behind, in the past of a tripartite system.  Mr. Turley has written about this subject as well, and in a piece published by the Washington Post stated, "agencies owe their creation and underlying legal authority to Congress, and Congress holds the purse strings. But Capitol Hill’s relatively small staff is incapable of exerting oversight on more than a small percentage of agency actions."  He went on to discuss the further dangers administrative agencies pose to the constitutional system because they hold the three roles of our autonomous branches of government - rulemaking (legislating), implementing (executing) and adjudicating.  In fact he harshly asserted of administrative hearings, "These agency proceedings are often mockeries of due process, with one-sided presumptions and procedural rules favoring the agency. And agencies increasingly seem to chafe at being denied their judicial authority."
     In a follow-up to TIME Magazine's 24,000 word cover story earlier this year entitled, "Bitter Pill" (which examined the state of the American insurance system) published in this week's edition, author Steven Brill checks back in with people he profiled in the "Bitter Pill" story.  Some of these individuals were sued by hospitals, in this case Yale-New Haven, for exorbitantly high hospital bills.  A provision in the Affordable Care Act was supposed to remedy this by directing the IRS to revoke tax exemption non-profit statuses to hospitals such as Yale-New Haven for issuing these high bills to patients who qualify for financial need services.  The duty to make the rules for these hospitals to comply with was delegated to the Treasury Department but the Treasury Department did not write the rules until June 2012, which meant these hospitals had no rules to follow.  If these regulations were issued at the law's inception, patients would not have continued to fight this battle years after a law to stop these practices was implemented.
     Has the administrative state grown too big and has Congress lost control?  It seems more and more rulemaking and work is being outsourced.  The number of contractors employed by the federal government is mind boggling.  Slate Senior Editor Emily Bazelon stated recently in Slate's weekly podcast, that Congress continues to pass vague statutes and just pass them off to administrative agencies for interpretation and implementation.  Courts continue to rule in favor of government agencies given the precedent of Chevron, which is not being made better by Congress' ambiguous statues.
     Judicial activism can be just as constitutionally threatening as this fourth branch.  For example, pro-immigration interest groups are calling on justices to rule in favor of the petitioners in Mayorkas given the potential implications of further stalls in the flawed immigration system.  The justices rule on the specific challenges brought in front of them.  It would be inappropriate for them to rewrite laws, in which they do not have authority.  In other words, it is inappropriate for the courts to look at other provisions of laws, which are not being challenged.  This is why the "standing to sue" issue is so important.  
     Given the current hazards and “dangers” to our constitutional system, Tuesday’s oral arguments should provide significant insight into the direction the Court is looking to go, especially after the partisan divide between Chief Justice Roberts and Scalia in the last administrative challenge.  While the justices are asked to rule on matters of existing law, the burden to correct this administrative state should be shifted to Congress.  As Jonathan Turley stated, Congress holds the power of the purse and ultimately can amend enabling acts which affect jurisdiction of agencies.  As always, I am looking forward to the debates on Tuesday.                

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