Monday, March 20, 2017

Chevron and Regulations

One of the big things about Judge Gorsuch as he tries to be confirmed by the Senate is his position on
Chevron, not the oil company but the Supreme Court case which determined how much deference, if any, should be given to an executive agency's interpretation of laws which resolve ambiguities in the language of the law. The majority opinion said courts should defer; Judge Gorsuch says "no deference" (very short summary there).

As a bureaucrat you know I come down on the deference side.  One of my reasons isn't much discussed: the reality of Congress and politicians.  For a given issue politicians have to come to some consensus, some resolution, else they'll get blasted as "do-nothing" by Harry Truman or the Dems in 2018.  But the reality is resolution is hard in a democracy--there's no magic sauce to make everyone happy.  The result is that Congress cobbles together something to show the voters.  That "something" is often a law which straddles both sides of the issue, or fuzzes the issue with vague language or lawyerisms such as "as appropriate", "reasonable", etc. etc.In other words, Congress often doesn't make decisions, it kicks them over to the poor bureaucrats in the agency who have to implement the law.

IMHO the people who agree with Gorsuch are living in a dream, one where ambiguities in legislation are mistakes by Congress, mistakes which can easily be fixed if the Court, instead of going along with the agency's fix by regulation, kicks the problem back to Congress for an easy and expeditious fix. 

In my view ambiguities aren't mistakes, they are features of the democratic process of legislation.

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