Supreme Court Will Consider Case That Could Help Undermine Administrative State

December 13, 2018 Updated: December 13, 2018

WASHINGTON—The Supreme Court’s decision on Dec. 10 to hear a veteran’s appeal of a bureaucratic denial of benefits could signal that the court is considering tearing away at the legal underpinnings of the modern administrative state.

Independent executive agencies are sometimes referred to as the “fourth branch” of the federal government in the United States. Critics say officials in the administrative state are unaccountable to voters and allow unelected bureaucrats to usurp the functions of the executive, legislative, and judicial branches. Congress, they say, is supposed to make the laws of the land, but lawmakers have steadily ceded that body’s constitutional powers to the administrative state, to the overall detriment of society.

Specifically, the decision to hear the case might foreshadow a narrowing of the application of the so-called Chevron doctrine that the Supreme Court enunciated in 1984.

In the landmark administrative law ruling in Chevron v. Natural Resources Defense Council, the high court held while courts “must give effect to the unambiguously expressed intent of Congress,” where courts find “Congress has not directly addressed the precise question at issue” and “the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”

In other words, Chevron stands for the proposition that an executive agency’s interpretation of a statute it administers is entitled to deference unless Congress has said otherwise.

The current case, Kisor v. Wilkie, was brought by James L. Kisor, a U.S. Marine Corps veteran, who seeks disability benefits for his service-related post-traumatic stress disorder. While the Department of Veterans Affairs agrees Kisor suffers from service-related PTSD, it has refused to award him retroactive benefits.

According to Kisor’s petition, the government’s “decision turns on the meaning of the term ‘relevant’ as used in” a federal regulation. “On that basis alone, the court held that the regulation is ambiguous, and … deferred to the VA’s interpretation of its own ambiguous regulation.”

To receive the benefits to which he believes he is entitled, Kisor is asking the Supreme Court to overturn two cases, known as Auer v. Robbins, and Bowles v. Seminole Rock and Sand Co., that grow out of and build on Chevron-based judicial deference.

The decision to take the case “is a Big Deal in the battle against the metastasizing administrative state,” writes David French at National Review.

“Auer and Bowles are the Supreme Court cases that ‘direct courts to defer to an agency’s reasonable interpretation of its own ambiguous regulation,’” French writes. “It’s the Little Satan that works with the Great Satan—Chevron deference—to fuel the explosive growth in the power of executive-branch agencies.”

Supreme Court Justice Neil Gorsuch appears to be an advocate for scaling back or perhaps even uprooting the Chevron doctrine. When he sat on the U.S. Court of Appeals, he argued the legal principle was fundamentally unsound:

“Transferring the job of saying what the law is from the judiciary to the executive unsurprisingly invites the very sort of due-process (fair notice) and equal-protection concerns the framers knew would arise if the political branches intruded on judicial functions.

“Under Chevron, the people aren’t just charged with awareness of and the duty to conform their conduct to the fairest reading of the law that a detached magistrate can muster. Instead, they are charged with an awareness of Chevron; required to guess whether the statute will be declared ‘ambiguous’ (courts often disagree on what qualifies); and required to guess (again) whether an agency’s interpretation will be deemed ‘reasonable.’

“Who can even attempt all that, at least without an army of perfumed lawyers and lobbyists? And, of course, that’s not the end of it. Even if the people somehow manage to make it through this far unscathed, they must always remain alert to the possibility that the agency will reverse its current view 180 degrees anytime, based merely on the shift of political winds and still prevail.”

The decision to hear the Kisor case came after the court unanimously overruled bureaucrats enforcing the Endangered Species Act, ruling Nov. 27 that the federal government overreached by limiting the development of private land in Louisiana to help save a rare frog that doesn’t actually live there.

Legal observers say that ruling chipped away at the Chevron doctrine and may be a sign that the court intends to further narrow its application.

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