The Legal Foundation of American Bureaucracy Is At Risk

Over the last 40 years, the Chevron doctrine has been cited as the legal justification for a wide range of government agency regulation and rulemaking. This precedent was created by a 1984 ruling of the Supreme Court in the Chevron v. National Resources Defence Council case. The Court ruled that courts should defer to a government agency’s interpretation of the law as long as the interpretation is reasonable. If Congress has been ambiguous or silent, the agency’s reasonable reading should govern. Of crucial importantance, agencies can do more than interpret overly broad Congressional lawmaking; they can create new regulations never debated and approved by Congress as long as they are “reasonable”. There are some limits to the deference courts must give, but they are narrow in scope and too complex to enumerate here. Chevron has become a pillar of administrative law and has been cited in more than 15,000 court cases.

This ruling has allowed for the broad expansion and proliferation of regulations, rules, policies, and guidance that go far beyond what Congress has authorized. For example, the Food and Drug Administration went from a formal rule-making approach, to an informal rule-making approach which skips the cumbersome public hearings, to issuing non-binding guidelines1 which are very difficult or impossible to challenge in court and are therefore effectivly legally binding:

After courts decided that the residual rulemaking authority in the statute empowered the FDA to issue binding regulations on matters not specifically covered by the formal rulemaking provision, the agency began to utilize “notice-and-comment” procedures for the promulgation of rules. The courts also, however, allowed interested parties to bring pre-enforcement challenges to such rules. Although “informal” rulemaking avoided the cumbersome hearings required with formal rulemaking, searching judicial review on the merits and increasing procedural demands added by all three branches of government have made it increasingly difficult. As a result, the FDA and other agencies have experimented with further shortcuts for issuing regulations.

As informal rulemaking became more difficult, the FDA shifted from promulgating binding rules to issuing nonbinding guidelines. For instance, rather than go to the trouble of amending its then 25-year-old regulations delineating “current” good manufacturing practices (cGMPs) for drugs, the FDA decided to issue guidance for the adoption of innovative quality control technologies by the pharmaceutical industry. Similarly, even as prescription drug advertising has become increasingly sophisticated, reflecting greater ingenuity and the emergence of brand new media such as the Internet, the FDA has not revised regulations that it issued during the 1960s, relying instead on various types of guidelines.

I am in favor of some of the regulations now in place because of Chevron. Most of the developed world models their regulation of pharmaceuticals after the United States Food and Drug Administration, and the FDA is undeniably the world-wide gold standard in safety and efficacy.

However, I am vigorously opposed to the relentless sprawl of administrative bureaucracy in government over the last 40 years, much of which has been justified and enabled by Chevron. It gives agencies wide-ranging latitude to interpret, expand, and elaborate on laws passed by Congress. It improperly shifts the balance of power from the judicial and legislative branches to the executive branch. It consolidates rule-making and rule-enforcement into an unaccountable government agency. You can vote your Congressional representative out of office. What can you do about those who work in the Office of Training and Communications, Division of Communications Management, Drug Information Branch, Center for Drug Evaluation and Research at the Food and Drug Administration? Yes, that’s one of the official names for the people who issue guidelines on drug advertising. There are at least two other offices and/or centers within the FDA which may be part of issuing these guidelines. After a couple hours of digging, I couldn’t be sure whether or how all these offices worked together, or didn’t, to produce the advertising guidelines drug manufacturers must abide by.

Yesterday, the justices on the United States Supreme Court heard arguments in two cases which challege this long-standing principle of legal deference to government agencies. Each case involves a fishing company challenging a National Marine Fisheries Service requirement that herring boats cover the cost (approx $700 per day) of government-approved observers aboard their vessels.

The court could chose to rule only on the specific fishing-related question in these cases, but most court observers expect them to rule more broadly, and limit or even possibly strike down Chevron deference.

Reporting for Bloomberg, Jennifer A Dlouhy and Greg Stohr articulate both sides of the issue clearly:

“The idea of deference is a fundamental mechanism for all of the agencies to do their jobs,” Green said during a discussion organized by the Center for American Progress and Democracy Forward. “Agencies have more expertise, they are more specialized and they are more flexible – so they can address new problems and crises that inevitably arise over time that Congress can’t foresee.”


Philip Hamburger, founder of the conservative New Civil Liberties Union, said the Supreme Court should sweep away a fundamentally flawed doctrine that unfairly tilts legal proceedings. Chevron compels “a systematic favoring of the most powerful party” in regulatory disputes – the very agencies that wrote the rules – said Hamburger, whose group represents fishing industry clients in one of the high court cases.

Also true.

I expect that the current court will do more than narrowly resolve the two fishing cases that were heard today. If they do, it could be one of the most impactful rulings of the John Roberts era.

  1. Lars Noah, The Little Agency That Could (Act with Indifference to Constitutional and Statutory Strictures), 93 Cornell L. Rev. 901 (2008)