Chevron, Delegation, and Clear Statement Rules

Article I, Section One vests “[a]ll legislative Powers” in Congress.[1] Among other things, this means that “[e]xcept in a few areas constitutionally committed to the Executive Branch, the basic policy decisions governing society are to be made by the Legislature.”[2] Congress cannot delegate the power to make the law to another entity (or, for that matter, a sub-part of itself).[3]

That, anyway, is the theory. In practice, of course, things look quite different. Federal administrative agencies, wielding vast and varied powers and affecting essentially everyone on a daily basis,[4] promulgate regulations, prosecute violations of the law, adjudicate disputes, instruct regulated parties as to how to comply with the law, etc.—making law in substance if not technically in form. Given the alphabet soup of federal agencies and the reams of regulations they promulgate annually, one would be forgiven for thinking that these federal agencies are really the ones doing the legislating, not Congress.[5] This is especially so since congressional statutes frequently lay down little more than vague “intelligible principles” by which agencies then operate.[6] No wonder, then, that agency action takes the shape of “quasi-legislation”[7] despite purportedly being only a species of executive action.[8]

Prefixing “quasi” to the word, however, does not substantively ameliorate the constitutional concerns that arise when executive branch actors legislate in Congress’s stead.[9] The Court has nevertheless permitted this renovation of the constitutional allocation of powers, balking only in the rarest and most extreme circumstances.[10] The Court has on occasion reassured that this state of affairs is permissible because this scheme of executive lawmaking must at least “be rooted in a grant of such power by the Congress . . . .”[11] “[A]n agency literally has not power to act . . . unless and until Congress confers power upon it.”[12] That is, agencies can only act when Congress authorizes them to do so—they cannot arrogate power to themselves ex nihilo.

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Except, not exactly. See, with Chevron in place, this ostensible “grant of such power” requirement is more-or-less a paper tiger. Chevron, after all, stands for the proposition that sometimes Congress’s delegation of power to an agency is “implicit,” and such delegation can be found even when the statute is “silent . . . with respect to the specific issue.”[13]

In other words, Congress does not really need to make a “grant of [quasi-legislative] power” to an agency before the agency can exercise such power. Whenever there is a statute with an ambiguity (or a “pregnant silence,” if you will) and an agency with authority to execute that statute, Congress is presumed to have delegated to the agency lawmaking power to clarify any ambiguities or fill up any gaps—even if Congress did not actually do so.

Chevron thus means that no authorization at all may still constitute “an implicit delegation of rule-making authority [to agencies] . . . to formulate legally binding rules to fill in gaps based on policy judgments made by the agency rather than Congress.”[14] Through Chevron, the Court has permitted “a body other than Congress to perform a function that requires an exercise of the legislative power,” despite the fact that Congress did not technically grant such power to that other body as the Constitution requires (at a minimum).[15]

The Court has tried to resolve the strain here by viewing Chevron as a background rule of which Congress has adequate notice. The theory goes that Congress is aware of Chevron, and so, when legislating, Congress knows that whenever it leaves ambiguities (or, again a “pregnant silence”) in statutes, that will be treated as an implicit delegation of power to an agency. Because Congress knows about this, ipso facto, Congress must intend to delegate power to an agency whenever it leaves an ambiguity or a gap in a law. Thus, it turns out that Congress can delegate legislative power to administrative agencies without ever having to speak in those terms. Sloppy drafting or silence will sometimes do!

Setting aside issues with imputing a single, homogeneous “intent” to a collective body such as Congress (short of that intent being expressed collectively through the vehicle of legislation), this “fiction” fails to repair the constitutional infirmity of permitting “implicit” or “silent” delegations of lawmaking power to agencies.[16] This is probably most obvious in instances of statutory silence. When should silence mean “delegation,” and when should silence mean that Congress did not give the agency power to act in that space? How is the Court supposed to figure out Congress’s delegatory “intent” in silence?

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The Court sometimes finds itself caught in this precise predicament. So, for instance, this last term in the 5-4 decision in SAS Institute Inc. v. Iancu, the Court concluded that a statute did not leave “room” for an agency to exercise a “wholly unmentioned . . . power.”[17] In this case, the majority reasoned that the “silence” was not of the delegatory variety.[18] The dissent, however, disagreed. Justice Breyer, articulating his view of Chevron, explained that the doctrine allows courts to construct a “hypothetical reasonable legislator” in the face of statutory silence and ask “what such legislators would likely have intended had Congress considered the question of delegating gap-filling authority to the agency.”[19]

Justice Breyer’s explanation of Chevron here, while perhaps somewhat idiosyncratic,[20] is revealing. After all, this is the logical upshot of the notion embodied in Chevron that a statute’s silence can amount to a delegation. To so conclude, the Court must decide that Congress hypothetically would have said that “the agency has authority to fill in this gap however it deems reasonable” had Congress realized it left a gap. Otherwise, the Court is permitting agencies to act without any kind of authorization to do so, notwithstanding the rule that “an administrative agency’s power to regulate . . . must always be grounded in a valid grant of authority from Congress.”[21]

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Unsurprisingly, this is how Chevron has operated in practice. In EPA v. EME Homer City Generation, L.P., for instance, Justice Ginsburg wrote for the Court that “[u]nder Chevron, we read Congress’ silence as a delegation of authority . . . to select from among reasonable options.”[22] In United States v. Home Concrete & Supply, LLC, Justice Breyer wrote, in a portion of the opinion joined by Chief Justice Roberts and Justices Thomas and Alito, that “a statute’s silence . . . as to a particular issue means that Congress has . . . likely delegate[ed] gap-filling power to the agency.”[23] In Entergy Corp. v. Riverkeeper, Inc., Justice Scalia wrote for the majority that it was “eminently reasonable” to conclude that a statute’s “silence is meant to convey nothing more than a refusal to tie the agency’s hands,” permitting agencies to do things without actual congressional authorization.[24] Lower courts, too, have applied Chevron in this way.[25]

In short, then, to recap. Congress must grant agencies “quasi-legislative authority” before they can exercise that power.[26] Under Chevron, however, the Court may find “implicit” delegations whenever it imagines that Congress would have given power to an agency to act in a certain fashion had Congress thought to do so, despite the fact that Congress did not actually do so (leaving an exploitable silence instead). Thus, Chevron in effect all but abrogates the requirement that Congress actually delegate quasi-legislative authority to agencies before they can wield the same. Some courts have chafed at this conclusion,[27] but, unless this aspect of Chevron has been overruled sub silentio, it remains the fact of the matter so long as Chevron remains in place.[28]

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Beyond the aforementioned issues, Chevron’s delegation-by-implication rule is also something of a sore thumb. For instance, consider how when “Congress intends to alter the usual constitutional balance between the States and the Federal Government,” the Court has required that Congress “must make its intention to do so unmistakably clear in the language of the statute” before the Court will construe a statute in a way that implicates Tenth Amendment/Federalism concerns.[29] Per this “plain statement rule,” the Court will not presume Congress has modified the structural-constitutional balance unless Congress makes it painfully obvious that it has done so.

Likewise, when Congress legislates in a field that the states have traditionally occupied, the Court assumes “that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.”[30] More generally, the Court has long “construe[d] ambiguous statutes to avoid constitutional problems” on the assumption that Congress legislates in light of, and within the bounds of, constitutional restrictions and limitations.[31] Indeed, the Court’s “jurisprudence abounds with rules of ‘plain statement,’ ‘clear statement,’ and ‘narrow construction’ designed variously to ensure that, absent unambiguous evidence of Congress’s intent, extraordinary constitutional powers are not invoked, or important constitutional protections eliminated . . . .”[32]

The Court has adopted these clear statement rules in a variety of contexts, particularly “[i]n traditionally sensitive areas, such as legislation affecting the federal balance.”[33] Why, then, when Congress enacts legislation “affecting the federal balance” by giving lawmaking power to agencies, does the same rule not apply? Why, in fact, is it precisely the opposite—that Congress can delegate away the legislative power simply through poor draftsmanship or oversight?

This is curious. When it comes to federalism (the key vertical-structural constraint embodied in the Constitution), the Court requires “unmistakably clear” language from Congress before presuming the legislature has “alter[ed] the usual constitutional balance” between states and the federal government. However, when it comes to separation of powers (the key horizontal-structural constraint embodied in the Constitution), the Court not only allows for implicit transfers of lawmaking power from the legislature to the executive, but in fact the Court has gone out of its way via Chevron and presumed that ambiguities or silence in a statute amount to a delegation of “quasi-legislative” authority to an agency.

Executive lawmaking is certainly “extraordinary”—if not in practice anymore, at least when considering the matter from the perspective of “constitutional power[.]”[34] And, of course, the tripartite allocation of constitutional power is an “important constitutional protection[,]”[35]—indeed, it is the most important constitutional protection.[36]

Why, then, shouldn’t a clear statement rule govern here as well in lieu of Chevron? Unless and until Congress actually and explicitly delegates particular authority to an agency to regulate in a specific domain, statutory ambiguities, gaps, and silence should not amount to “implicit delegations” of lawmaking power.[37] The Court should not enable Congress to reconfigure the constitutional allocation of governmental powers by implication or ambiguity. A clear statement rule could do quite a bit of good here.

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“‘[T]he integrity and maintenance of the system of government ordained by the Constitution’ mandate that Congress generally cannot delegate its legislative power to another Branch.”[38] This being the case, when Congress does delegate its  legislative power away, the Court should force Congress to be explicit about what it is doing, to ensure that Congress has fully taken into consideration “the integrity and maintenance” of our form of government before modifying it. Chevron cuts the wrong way here, letting Congress rejigger the separation of powers through sloppy drafting, implication, and even silence.

In one of his final written opinions before retiring, Justice Kennedy admonished:

[I]t seems necessary and appropriate to reconsider, in an appropriate case, the premises that underlie Chevron and how courts have implemented that decision. The proper rules for interpreting statutes and determining agency jurisdiction and substantive agency powers should accord with constitutional separation-of-powers principles and the function and province of the Judiciary.[39]

The Court will hopefully accept the invitation and take up an appropriate case soon. Indeed, one currently pending certiorari petition asks the Court to reconsider Chevron insofar as the doctrine can be stretched to mean that silence may “implicitly” authorize agency action.[40] If the Court takes up that invitation,[41] here is to hoping the Court fully considers how “[t]he proper rules for interpreting statutes” in this context might be better crafted to fully “accord with constitutional separation-of-powers principles . . . .”[42]

 

 

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[1] U.S. Const. Art. I, § 1.

[2] Mistretta v. United States, 488 U.S. 361, 415 (1989) (Scalia, J., dissenting).

[3] Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001); see Loving v. United States, 517 U.S. 748, 771 (1996) (“Congress may not delegate the power to make laws and so may delegate no more than the authority to make policies and rules that implement its statutes.”); Bowsher v. Synar, 478 U.S. 714, 736-59 (1986) (Stevens, J., concurring in the judgment).

[4] Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 499 (2010).

[5] City of Arlington v. FCC, 569 U.S. 290, 315 (2013) (Roberts, C.J., dissenting).

[6] J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928).

[7] SEC v. Chenery Corp., 332 U.S. 194, 202 (1947) (observing how agencies “fill[] in the interstices” of statutes “through th[e] quasi-legislative promulgation of rules”).

[8] See FMC v. S.C. State Ports. Auth., 535 U.S. 743, 774 (2002) (Breyer, J., dissenting) (“The term[] ‘quasi legislative’ . . . indicate[s] that the agency uses legislative like . . . procedures but that it is not, constitutionally speaking, . . . a legislature,” and “in exercising these powers, the agency is engaging in an Article II, Executive Branch activity.”).

[9] See Dep’t of Transp. v. Ass’n of Am. R.R., 135 S. Ct. 1225, 1240-55 (2015) (Thomas, J., concurring in the judgment).

[10] See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 537-38 (1935) (“Congress cannot delegate legislative power to the President to exercise an unfettered discretion to make whatever laws he thinks may be needed or advisable . . . .”).

[11] Chrysler Corp. v. Brown, 441 U.S. 281, 302 (1979).

[12] La. Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986).

[13] Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 843-44 (1984).

[14] Michigan v. EPA, 135 S. Ct. 2699, 2713 (2015) (Thomas, J., concurring).

[15] Id.

[16] Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2148 (2016) (Thomas, J., concurring).

[17] 138 S. Ct. 1348, 1358 (2018).

[18] See also Util Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2445 (2014) (emphasis added) (“Agencies exercise discretion only in the interstices created by statutory silence or ambiguity . . . .”); Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 223 (2009) (“[S]ometimes statutory silence, when viewed in context, is best interpreted as limiting agency discretion.”).

[19] SAS Institute, 138 S. Ct. at 1364 (Breyer, J., dissenting).

[20] Justice Kagan did not join this one sub-part of Justice Breyer’s dissent. Id. at 1360 (Breyer, J., dissenting).

[21] FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 161 (2000).

[22] 134 S. Ct. 1584, 1604 (2014).

[23] 566 U.S. 478, 488 (2012).

[24] 556 U.S. 208, 222 (2009).

[25] See, e.g., Or. Rest. & Lodging Ass’n v. Perez, 816 F.3d 1080, 1088 (9th Cir. 2016) (“[I]f a court holds that a statute does not prohibit conduct because it is silent, the court’s ruling leaves room for agency discretion . . . .”).

[26] Chrysler Corp. v. Brown, 441 U.S. 281, 302 (1979).

[27] See, e.g., Marlow v. New Good Guy, Inc., 861 F.3d 1157, 1163-64 (10th Cir. 2017) (reading Chevron as only permitting agencies to fill gaps when a statute empowers an agency to act but either contains undefined terms [and so is not a true gap but rather an ambiguity] or does not give detailed instructions to guide the agency [again, suggesting mere ambiguity rather than total silence], otherwise concluding that “‘silence’ . . . is no ‘gap’ for an agency to fill”). The trouble here is that, even in this ostensibly interstitial arena, agencies may make major policy decisions (for example, what are the waters of the United States?) without a grant of congressional authorization to so regulate. Additionally, this narrow reading of Chevron is very much an eye-of-the-beholder issue: where are the interstitial “gaps” in a statute versus “the vast void of silence on either side of it”? Or. Rest. & Lodging Ass’n, 816 F.3d at 1094 (Smith, J., dissenting).

[28] Pereira v. Sessions, 138 S. Ct. 2105, 2129 (2018) (Alito, J., dissenting).

[29] Gregory v. Ashcroft, 501 U.S. 452, 460-61 (1991) (cleaned up).

[30] Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947).

[31] Citizens United v. FEC, 558 U.S. 310, 373 (2010) (Roberts, C.J., concurring); Jones v. United States, 526 U.S. 227, 239-40 (1999).

[32] Cipollone v. Liggett Grp., 505 U.S. 504, 546 (1992) (Scalia, J., concurring in part and dissenting in part) (emphasis added).

[33] United States v. Bass, 404 U.S. 336, 349 (1971).

[34] Cipollone, 505 U.S. at 546 (Scalia, J., concurring in part and dissenting in part).

[35] Id.

[36] See Morrison v. Olson, 487 U.S. 654, 697 (1988) (Scalia, J., dissenting) (“The Framers of the Federal Constitution . . . viewed the principle of separation of powers as the absolutely central guarantee of a just Government. . . . Without a secure structure of separated powers, our Bill of Rights would be worthless . . . .”).

[37] A clear statement rule could also apply in cases where there is a delegation, albeit a vague one. In such cases where Congress makes a delegation but fails to provide sufficient detail by which a court might glean a rule of decision in a given case challenging an agency’s scope of authority, the Court could (if it fears the effects of a fully reinvigorated nondelegation doctrine) simply decline to give the challenged agency action the force and effect of law on an as-applied basis, as opposed to striking down whole statutory schemes for discrete nondelegation violations. See Ilan Wurman, As-Applied Nondelegation, 96 Tex. L. Rev. 975 (2018); cf. Johnson v. United States, 135 S. Ct. 2551, 2567-68 (2015) (Thomas, J., concurring in the judgment) (discussing the void for vagueness doctrine) (“Before the end of the 19th century, courts addressed vagueness through a rule of strict construction . . . . [R]ather than strike down arguably vague laws . . . antebellum American courts . . . simply refused to apply them in individual cases under the rule that penal statutes should be construed strictly.”).

[38] Mistretta v. United States, 488 U.S. 361, 371-72 (1989) (quoting Field v. Clark, 143 U.S. 649, 692 (1892)).

[39] Pereira v. Sessions, 138 S. Ct. 2105, 2121 (2018) (Kennedy, J., concurring).

[40] Petition for a Writ of Certiorari, Cal. Sea Urchin Comm’n v. Combs, Nos. 15-56672, 17-55428, at 25-26 (May 30, 2018).

[41] Four days after Justice Kennedy’s concurrence in Pereira came out, the Court declined to take up two petitions posing similar questions as the petition in California Sea Urchin Commission. See Nat’l Rest. Ass’n v. DOL, 138 S. Ct. 2697 (June 25, 2018); Wynn Las Vegas, LLC v. Cesarz, 138 S. Ct. 2670 (June 25, 2018). The Court has not yet had a chance to consider the petition in California Sea Urchin Commission. Perhaps with a new Justice on the bench inclined to heed Justice Kennedy’s call, and with this case potentially serving as a better vehicle for consideration of the question than the other two, the Court will have the votes to take the case and either repair or reconsider Chevron.

[42] Pereira, 138 S. Ct. at 2121 (Kennedy, J., concurring).

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