Thomas W. Merrill

It's no secret that the United States has become a bureaucratic nightmare. What most do not know is that there is a whole Administrative complex in government that burdens the courts while it pains commerce and industry. In The Chevron Doctrine, Thomas Merrill examines one Supreme Court decision that symbolizes all that is difficult in administrative law, if not what is completely wrong with it.

When a government agency tells a corporation it must change its ways (for reasons of safety, equality, pollution and so on), the firm's first inclination is to sue the agency. This provides endless work for the DC Circuit Court, which handles little else. The arguments are academic, meaning whoever loses will likely appeal to the Supreme Court (SCOTUS), helping reduce the number of other kinds of cases it can take on during its ever-shrinking term. Almost all cases SCOTUS agrees to hear are corporate or government, not individual.

One such case was Chevron Corporation versus the Environmental Protection Agency (EPA) in the 1980s. The whole lawsuit was over the term "stationary source" (of pollution). Chevron said it referred to the whole plant, while the EPA looked at all the sources within the plant. Not only do the Justices have to go back through all the relevant older cases for precedents, but they also have to look at the legislative record, what Congress set out for this new agency, and if the agency was within its rights to make such policy. And we haven't even approached whether the policy was right or wrong.

In the Chevron case, Justice John Paul Stevens hit upon an elegant solution, though he didn't know it at the time. He said first the Court needed to know if the agency was properly set up by Congress to make such policy. If so, the Court should simply defer to the agency, because that was where all the expertise and history lay. Also, the properly enabled agency reported to the president, so it wasn't a rogue action or player. Therefore the Court should keep out of it. If it didn't have its legislative ducks in a row, step two was to answer the question - was its action reasonable. SCOTUS was unanimous in agreeing to Stevens' majority opinion.

Then a funny thing happened. The lower courts started using this Chevron decision, now Doctrine, themselves. It had everything going for it. It was simple and elegant. It made judges' lives much easier. For once, there was actual direction from the highest court. Employing the Chevron Doctrine meant fewer of their decisions would be appealed and overturned. In the 35 years since, it has been employed over a hundred times, Merrill discovered.

But it has been a rough ride. Lawyers attacked it, as only lawyers can. What does reasonable mean? What does clear (as in the enabling legislation) mean? What are the degrees of deference to the agency, and how was that range determined? What does respect for the agency's work mean? How much judicial agreement is to be expected from this so-called respect?

It got so bad that the elegant two step process got saddled with a third step - step zero. It was no longer elegant. Then, the prejudices of the Justices came into play. When Antonin Scalia was appointed to SCOTUS, he actually held that Stevens' specifications on how the Chevron Doctrine would work were wrong. Not that Scalia wanted to undo it. Quite the contrary. He was so enamored of it he wanted it enshrined as the only way to judge these cases. Just three years after Stevens' opinion, Scalia was calling it the traditional solution. But when he got to the top, he claimed Stevens was wrong.

Scalia was nothing if not inconsistent. One never knew what his opinion would be, contradicting himself, attacking other Justices, rewriting history, or insisting on his way again and again endlessly, despite no other Justices ever supporting his position in case after case.

New SCOTUS Justices Kavanaugh and Gorsuch are skeptics of the Chevron Doctrine, which doesn't help speed things along. Stevens came to think he was wrong about the whole thing. Justice Thomas too. Politics and personalities took over from "saying what the law is," the longstanding mission of the Court. Conservative-leaning judges tend to be against agencies regardless. They want less government at whatever cost, including the intent of Congress. And will twist the facts to make it so. This was a Scalia specialty.

The legal maneuverings, the microscopic examination of single words and the battle of the precedents makes some SCOTUS decisions unfathomable. Merrill says: "The Court, in an opinion by Justice Scalia, would later make explicit the theory that ambiguity constitutes an implicit delegation (of powers). Grounding deference in theory of implicit delegation based on ambiguity - which even Chevron proponents concede is a fiction - creates a very large puzzle," to put it diplomatically. So you can have your cake and eat it too in this Red Queen world of SCOTUS.

There is, unfortunately, a real need for these legal processes, and a need for them to work smoothly and sensibly. For example, SCOTUS has ruled that the Food and Drug Administration (FDA) did not have the right to regulate smoking tobacco, because it didn't specifically say so in its enabling legislation. This gave Big Tobacco a Get Out of Jail Free card that was valid for decades while its customers kept dying in ever greater numbers. Then just this year, SCOTUS ruled that the Occupational Safety and Health Administration (OSHA) did not have the right to implement rules on occupational safety and health in the workplace when it came to the COVID-19 pandemic, because the legislation that created OSHA somehow never mentioned a COVID pandemic. The agency's very name was apparently not considered a valid clue.

And then consider, as Merrill does, overseas offices of American companies. If an American transfers to an overseas office of the firm, do American benefits for its employees follow? Does the company get away with providing nothing? Congress did not specify this situation in enabling legislation, so it's up to the courts as to whether or not this is reasonable.

In other words, the need is real.

Any reader who didn't already get lost in the weeds would quickly see the solution to all this nonsense. When Congress creates a new agency, it must include its powers and range prominently, so even a SCOTUS Justice can find it. So for example, the (non-existent) Climate Change Administration would be empowered to regulate, limit or ban any substance that could have an adverse effect on the air, soil, water, or living being, or any combination thereof. The mandate would be domestic or overseas for any business in America or any American business with a nexus overseas. So even if someone sues, the Justices could point to the legislation to say sorry, but this is a lock. This agency is well within its powers to stop the use of this artificial chemical compound.

Just that move would free up endless capacity in the courts.

There is a law, the Administrative Procedures Act (APA) of 1946, that sets out rules of engagement. But it doesn't nearly cover the complexities of life today, including the gridlock in Congress. And it provides no reliable solution to all the lawsuits over jurisdiction and powers of agencies. For the purposes of this book the most important clause is §706. This directs courts to reject agency actions when they exceed their delegated authority. This is why everyone sues.

And there's another problem. Merrill says the business of delegation is settled. He has to say this because the Constitution says Congress does not have right to delegate its powers, which it does every time it creates a new agency. Instead of making the rules as required, it charges the agency with making the rules for itself, because Congress is dysfunctional and couldn't possibly do this. But it's illegal. And these agency-made rules then act as enforceable laws, which only Congress can create, at least according to the Constitution. Instead, Americans are enduring a fourth branch - the Administrative Branch - unrecognized in the Constitution.

The self-enabling of agencies has been going on so long, lawyers like Merrill think it is settled, without amending the Constitution, which is what needs to happen for this to be legal. The way Administrative law works is therefore completely unconstitutional, as other authors have posited and continue to claim. From my reading, it is not in any way settled. Is it any wonder firms keeping suing over it? They might win an OSHA-like decision if Neil Gorsuch has his way.

This, by the way, is nothing new. For 150 years, governments at all levels have operated as if the Civil War amendments did not exist. Equality, equal treatment and all the other facets of these amendments were an inconvenience that could be safely and totally ignored, even by SCOTUS. The US Constitution is not so much a guiding light as a lunch menu

The Chevron Doctrine is an autopsy. It slices and dices every conceivable aspect of the case and the doctrine. It examines in detail the four legal values it addresses, or at least which it needed to address. And how thoroughly the process and the decision took them on. There are also six values/concepts for a successor doctrine that would operate more consistently smoothly than the Chevron Doctrine does today. And there are endless cases where the doctrine was applied, and how they differed, often in ways invisible to the untrained eye. It is, in a word, everything.

The book suffers from being painfully dry and flat. Merrill adds no color to anything. He shows no attitude or emotion. At the extreme, he approves or disapproves of some court decision. I'm sure he's quite proud of his use of language that is careful to the point of being unimpeachable. But if I didn't know better, I would have guessed the whole book was machine-generated. It's a hard read.

David Wineberg… (mais)