(An editorial by Lignite Energy Council President & CEO – Jason Bohrer)
Last week the Supreme Court decided a case, Loper Bright Enterprises vs. Raimondo—that overruled a longstanding decision that created what is now referred to as the Chevron doctrine and unleased a flood of hot takes on social media. This reversal will lead to significant changes in the process by which energy policy—and all policy, really—is made. The early reaction to this decision demonstrates that fundamental misunderstandings are clouding the truth of what this decision means, and if it is “good” or “bad” while illustrating why I have long argued that Congress should lead more clearly and aggressively on energy policy.
Ironically, the Chevron case from which the doctrine comes was actually widely reviled by environmental groups when it was first decided. The Supreme Court issued a decision in favor of Chevron—the very embodiment of “Big Oil”—and thereby gave President Reagan’s agencies an incredible amount of leeway in how they implemented laws that Congress had passed. The summary you’ll see most often declares that the decision allowed federal agencies to resolve ambiguities in the law as they best see fit because those agencies have the capability and bandwidth to employ experts and rely upon them. The case decided last week, Loper, reverses that decision and reduces the agencies abilities to interpret ambiguities. Critics of this decision may refer to this as a “power grab” by the Courts although it is nothing of the sort.
The critical flaw with such knee-jerk analysis creates a straw man or false dichotomy now being debated: “because Loper tell agencies they can’t resolve ambiguities, therefore the courts must do so”. This sets up a false dichotomy between what should be seen as two untenable alternatives. Structurally, such an argument glosses over what is at stake—an ambiguous law. Ever since Marbury vs. Madison things have been quite clear: if the law itself is unclear, the courts interpret laws. The shift comes once a law has been found unclear—who gets to fill in the blank?
The “power grab” complaint supposes that if statutory ambiguities become so large as to make the meanings unclear, because agencies can no longer fill in those particular gaps as they please, the Courts must step in and do so. (Hence the discussion and misdirection about experts.) Such an outcome is no better than Chevron. This should be described not as the courts “grabbing legislative power” from the Executive branch agencies, but instead as a massive “power shift” on matters of policy back to the Legislative Branch. Where it belongs. Simply, if the law is not clear, Congress needs to make clearer laws.
In fact, that was the Court’s holding even in Chevron. A seldom seen quote from the original Chevron case: “The arguments over policy that are advanced in the parties’ briefs create the impression that respondents are now waging in a judicial forum a specific policy battle which they ultimately lost in the agency and in the 32 jurisdictions opting for the “bubble concept,” but one which was never waged in the Congress. Such policy arguments are more properly addressed to legislators or administrators, not to judges.” (Emphasis mine).
At the time of Chevron, politically, Republicans wanted to empower President Reagan and the appointees he was making to the Executive Branch as well as his appointees to the federal court system. After the landslide election of 1984, it undoubtedly appeared that Republicans would dominate the Executive Branch indefinitely and, because they were in what appeared to be a permanent minority in the House of Representatives, empowering both agencies and judges made sense. In other words, some early support of the Chevron decision may have included an element of self-dealing.
As Republicans’ hold on the Executive Branch grew less sure after Reagan’s departure—eight years of George W. Bush sandwiched between sixteen years of Clinton and Obama and amid growing talk of “activist judges”, many on the right began to view Chevron with suspicion, but there has always been a number of legislators and observers who believed it was never a good decision—read Senator Cramer’s essay on cooperative federalism—and they began to attract adherents while also seeing how Chevron degraded the legislative process and accountability—contrary to what the Court assumed.
The Court partially justified its decision by reasoning that that the leaders of agencies are political appointees, appointed by a President who is accountable to voters. This concept was lightly touched upon by the Court but has gained new life and has continued to be used by present-day defenders of Chevron who promote the “power grab by the courts” theory. This “democracy by proxy” theory argues that accountability for unpopular agency decisions still lies with someone accountable to voters—the President. If voters were unhappy with the rules the agency heads were making, voters could vote out the President who appointed those people. But this is at best a tenuous connection to “democracy” and does not reflect the reality of government. In fact, one could therefore argue that if voters truly and deliberately exercise “democracy by proxy” in voting for Presidents based upon who the President appoints to the Department of Interior, couldn’t it also be argued that voters choose Donald Trump based on who he was going to appoint to the judiciary, leading to the conclusion that all recent Supreme Court decisions have been made democratically? Appointments matter, yes, but to pretend policy choices made by appointees will provide an accountability check on the President is folly. Perhaps the Court believed it in 1985, but we know better now.
Moreover, in what should have been a foreseeable unintended consequence, policy making actually got less democratic and less accountable. The unintended consequence of Chevron has been on clear display for 20 years. We all have watched Congress cede more and more authority—and accountability—to the executive branch, not because it made good policy but because it made good politics. Chevron gave Congress a green light to pass the buck to the Executive Branch, removing the obligation to thoughtfully consider clear policy choices and vote them up or down.
So as you read and think about this decision, don’t fall into the trap of evaluating the binary “agency experts resolving ambiguities to make laws [good] vs. judges resolving ambiguities to make laws [bad]”. Remember that neither of those bodies is Constitutionally directed to make laws and those are not the only two options. The job is the sole responsibility of Congress. It’s a fair point that such a big shift may create uncertainty in the short term—but there is an opportunity for Congress to make clearer, less ambiguous laws while decreasing the importance and influence of appointees in both the legislative branch and the courts.
Congress will need to decrease its reliance on omnibus bills and increase the amount of time spent in Committee hearings listening to experts in order to create a robust record for later courts to review. In Chevron, the Court references the record several times…the type of record that is rarely being created today. Critically for our democracy, this approach will create more lines of accountability from the people who make the laws to the voters who must live under them—a true and rare win for everyone.
What’s it all mean?
