SCOTUS Should ‘Unequivocally Abandon’ Chevron, Say 36 GOP Congress Members
The U.S. Supreme Court should “unequivocally abandon” the contemporary Chevron deference doctrine “because it contradicts Articles I, II, and III of the Constitution,” said an amicus brief (docket 22-451) in support of the petitioners in Loper Bright v. Raimondo submitted Monday by Sen. Ted Cruz, R-Texas, Rep. Mike Johnson, R-La., and 34 other Republican members of Congress.
Their brief was among at least 19 submitted Monday, most supporting the petitioners and in favor of eliminating Chevron. One of those 19, a separate brief, authorized by the House Bipartisan Legal Advisory Group, said the petitioners and other amici presented “comprehensive arguments” on why SCOTUS should “overrule” Chevron. “The House therefore addresses the other part of the question presented, which deals with the interplay between statutory silence and Chevron deference,” it said.
Decades of application of Chevron deference “facilitated the exercise of functions by the executive branch that more properly belong to the legislative and judicial branches,” said the Cruz-Johnson brief. “Agencies exploit general or broad terms in statutes to engage in policymaking functions of questionable legality with the assumption that courts will grant deference and not independently evaluate the lawfulness of those agency interpretations,” it said.
The Constitution carefully imposes structural constraints on all three branches, and the exercise of power free of those restraints subverts the design of the Constitution’s ratifiers, said the Cruz-Johnson brief. Chevron deference “effectuates such subversion by relieving legislators of significant aspects of their duty to legislate and judges of their duty to fully adjudicate questions of law,” it said. Agencies themselves consequently “are engaged in legal determinations without being fully subject to review or accountability,” it said.
Not only does the “modern framework” of Chevron deference “offend the fabric” of the Constitution, it also “contradicts” the Administrative Procedure Act, said the Cruz-Johnson brief. Section 706 of the APA “provides that courts are obliged to decide all questions of law including statutory interpretation when reviewing agency action for lawfulness,” it said. Chevron deference is “eminently worthy of abandonment,” it said. “It has led to increasingly chaotic shifts in administrative regulations that affect millions of Americans, and it puts a thumb strongly on the scale in favor of the executive branch when its actions are challenged in court,” it said.
The immediate case “centers on the meaning of statutory silence,” said the separate House brief. Loper Bright “raises a question with far-reaching implications: should Chevron deference apply when agencies claim regulatory authority that Congress did not expressly give or withhold? It should not.”
Treating such statutory silence, standing alone, “as an ambiguity that triggers Chevron deference upends the relationship between Congress and the agencies it has created,” said the House brief. “Agencies have only the authority given to them by Congress, and courts should not presume that Congress silently delegates regulatory power to agencies,” it said.
Because agencies have no authorities beyond those delegated by Congress, Congress “need not spell out each regulatory authority it is withholding from an agency,” said the House brief. “Thus, for Chevron purposes, Congress does not leave a purported gap for an agency to fill when it is silent on whether an agency has the authority to act. Rather, if, after applying traditional methods of statutory construction, a statute is silent about whether an agency has a particular authority, a court should conclude that an agency lacks that regulatory authority.”