Chevron cuts both ways

 

This is a thoughtful article, but I would like to advance a contrary view (“Shifting scales,” HCN, 5/1/17). Our basic theory of government is that Congress enacts the laws, the executive enforces the laws, and the courts decide the facts and the laws’ meaning.  Administrative agencies have been fit into this structure under the theory that Congress, by enacting laws, still decides the policy, but the administrative agencies can fill out the details of those policies by issuing regulations, and that the agencies are enforcing the laws and their regulations largely through civil actions (rather than criminal prosecutions) and are typically subject to judicial review.

The problem with Chevron deference is it allows the agency (rather than Congress) to decide the policy, and it reduces the effectiveness of judicial review. There is not enough space here to discuss the doctrine of separation of powers, but it is a vital protector of our political process and of procedural fairness. Chevron was a departure from that long-held concept of justice.  It is not enough to say that “Chevron helps safeguard the environment,” because it can be just as effective the other way, and because people concerned about the environment are also concerned about “liberty and justice for all.”

Michael Waggoner
Boulder, Colorado

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