The Founding Fathers Win Again

By Karen Budd-Falen

When looking at the Founding Fathers, I would say I am more of a James Madison and Thomas Jefferson kind of person. Madison and Jefferson conceded an executive branch was necessary in the American experiment, but they were extremely concerned a strong legislative branch was critical to hold check on a strong executive branch. 

Alexander Hamilton saw it the other way. Hamilton valued order more than liberty, supporting the idea of a strong executive branch. 

George Washington, to a lesser extent, leaned more toward Hamilton’s view, having just survived as head of the Continental Army and seeing first-hand how chaotic the government had been at the time. 

This discussion played out in spades in the recent Supreme Court decision Loper Bright Enterprises vs. Raimondo, which overturned the longtime precedent of Chevron vs. Natural Resources Council. 

Under the new court decision, the majority of the Supreme Court opine only Congress should be making law and the law from Congress should be clear – Madison and Jefferson – over the minority view – Hamilton and Washington – which wanted to give the executive branch a much larger role in “interpreting” Congressional acts.

Chevron, decided in 1984 by the U.S. Supreme Court, consisted of a two-part test which resulted in deference and expansive power put in the hands of administrative agencies. The now overruled test created in Chevron required the court to determine whether Congress was silent or ambiguous about the precise issue at hand. 

If silence or ambiguity were displayed, the court then deferred to an agency’s interpretation of the law, if its interpretation could meet the low standard of permissibility and “reasonability.” Commonly the “reasonability” of an agency was far from reasonable. 

Under this precedent, agencies possessed broad discretion and a broad ability to interpret the laws in their favor. Chevron heavily weighed the scales toward the agencies, at the expense of the people’s right to be fairly heard.

Chevron has had real-life detrimental implications on industries and landowners, who have challenged agencies such as the Fish and Wildlife Service, Bureau of Land Management and the Environmental Protection Agency. 

Commonly industries and landowners were faced with a losing battle at the hands of Chevron deference. In cases such as these, those affected by these acts have had to put in overtime to show the agency and the challenger should be put on an equal playing field, only to be told the agency always wins.

Chief Justice Roberts provided giving power back to the courts in how they viewed an agency regulation and taking it away from agencies is founded in the Administrative Procedures Act (APA). Importantly, this does not mean courts make laws – they do not. 

Rather, the APA, put in place in 1946, is the overarching legal structure which governs agency action and procedure. 

Section 706 of the APA cited by the court provides, “The reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions and determine the meaning or applicability of the terms of an agency action.” 

The Constitutional role of courts as the judiciary branch of the government are tasked with the job of interpreting laws. In the court’s opinion, Roberts cites the courts’ role to interpret the laws means the best reading of a statute is “the reading the court would have reached if no agency were involved.” 

In other words, no longer does the court have to “assume” the federal agency is right. Forcing courts to make this assumption under Chevron prevented judges from “judging.”

Under the court’s groundbreaking decision in Loper Bright Enterprises, courts may no longer defer to an agencies’ interpretation of the law simply because a statute is ambiguous or silent.

Loper Bright Enterprises has leveled the playing field for petitioners challenging an agency’s interpretation of the law and has given power back to the courts and the people. 

After 20 years of agency power, the power has been returned to its rightful place. Given the Madison and Jefferson view won the day during the founding of this nation, I think the founders would be proud.

Karen Budd-Falen is a senior partner with Budd-Falen Law Offices, LLC and can be reached by visiting buddfalen.com.