The only practical limitation on excessive delegation is to construe delegations of power strictly, to ensure that the agencies exercise only the quantum of power Congress explicitly delegated to them. In the modern administrative state, Congress delegates vast swathes of policy-making power to the regulatory agencies, and the courts no longer even attempt to ensure that the key policy choices are made by the legislative branch. The Chevron doctrine is particularly important when the question is the scope of the agency’s own authority. Other examples include educational policy, environmental law, transgender issues, patents, election contributions, and health care. Obviously, this kind of interpretation can easily shift from administration to administration, effectively converting written law passed by Congress into variable policy molded by executive agencies. Just a few days ago, a federal appellate court upheld this order under Chevron – even though “child abuse” is a term that, to most people, connotes a far more hateful and intentional crime. It is a systemic thumb-on-the-scales in favor of the government’s view of the meaning of the statute, even if that view changes with political winds and even if it contradicts earlier judicial interpretation.įor just one recent example, the federal Board of Immigration Appeals ordered the deportation of a lawful permanent resident under a statute that calls for removal of persons convicted of “child abuse.” The agency interpreted “child abuse” to include driving under the influence with a child in the car not wearing a seat belt. Although first announced in 1984, Chevron deference has become a central pillar of the modern administrative state.
The effect is to give the executive branch considerable leeway in determining the scope of its own power. What is the Chevron doctrine? It is the idea that in litigation over federal agency action, the courts will defer to the agency’s own construction of its operating statute, unless that construction is outside the range of reasonableness, usually because the meaning of the statute is clear. Nonetheless, serious issues will be discussed, and one of the most serious and most discussed will be something known to lawyers as the “ Chevron doctrine.” As a practical political matter, that is all that needs be said about the Kavanaugh appointment.
He is opposed because his nominator is Donald Trump, and he is opposed because some Democrats feel cheated that President Obama’s 2016 nominee, Judge Merrick Garland, was never given a hearing or a vote.
Opposition to Judge Brett Kavanaugh’s appointment to the Supreme Court has almost nothing to do with the nominee himself, who is regarded by almost all serious observers as exceptionally accomplished, experienced, and judicious. (This article was first published on Defining Ideas -a Hoover Institution journal-on July 30, 2018.)
0 kommentar(er)
