Aw, heck, why don't they just introduce a resolution declaring, "We, the Senate, like all the good parts of the war and disapprove of all the bad parts. We demand all credit for anything that goes right, and reject any blame for anything that goes wrong"?
In my view, the theoretical justification for Chevron is no different from the theoretical justification for those pre-Chevron cases that sometimes deferred to agency legal determinations. As the D.C. Circuit, quoting the First Circuit, expressed it: "The extent to which courts should defer to agency interpretations of law is ultimately 'a function of Congress' intent on the subject as revealed in the particular statutory scheme at issue.'" An ambiguity in a statute committed to agency implementation can be attributed to either of two congressional desires: (1) Congress intended a particular result, but was not clear about it; or (2) Congress had no particular intent on the subject, but meant to leave its resolution to the agency. When the former is the case, what we have is genuinely a question of law, properly to be resolved by the courts. When the latter is the case, what we have is the conferral of discretion upon the agency, and the only question of law presented to the courts is whether the agency has acted within the scope of its discretion-- i.e., whether its resolution of the ambiguity is reasonable. As I read the history of developments in this field, the pre-Chevron decisions sought to choose between (1) and (2) on a statute-by-statute basis. Hence the relevance of such frequently mentioned factors as the degree of the agency's expertise, the complexity of the question at issue, and the existence of rulemaking authority within the agency. All these factors make an intent to confer discretion upon the agency more likely. Chevron, however, if it is to be believed, replaced this statute-by-statute evaluation (which was assuredly a font of uncertainty and litigation) with an across-the-board presumption that, in the case of ambiguity, agency discretion is meant.
It is beyond the scope of these remarks to defend that presumption (I was not on the court, after all, when Chevron was decided). Surely, however, it is a more rational presumption today than it would have been thirty years ago-- which explains the change in the law. Broad delegation to the Executive is the hallmark of the modern administrative state; agency rulemaking powers are the rule rather than, as they once were, the exception; and as the sheer number of modern departments and agencies suggests, we are awash in agency "'expertise."' If the Chevron rule is not a 100% accurate estimation of modern congressional intent, the prior case-by-case evaluation was not so either--and was becoming less and less so, as the sheer volume of modern dockets made it less and less possible for the Supreme Court to police diverse application of an ineffable rule. And to tell the truth, the quest for the "genuine"' legislative intent is probably a wild-goose chase anyway. In the vast majority of cases I expect that Congress neither (1) intended a single result, nor (2) meant to confer discretion upon the agency, but rather (3) didn't think about the matter at all. If I am correct in that, then any rule adopted in this field represents merely a fictional, presumed intent, and operates principally as a background rule of law against which Congress can legislate.
If that is the principal function to be served, Chevron is unquestionably better than what preceded it. Congress now knows that the ambiguities it creates, whether intentionally or unintentionally, will be resolved, within the bounds of permissible interpretation, not by the courts but by a particular agency, whose policy biases will ordinarily be known. The legislative process becomes less of a sporting event when those supporting and opposing a particular disposition do not have to gamble upon whether, if they say nothing about it in the statute, the ultimate answer will be provided by the courts or rather by the Department of Labor.
Scalia, Judicial Deference to Agency Interpretation of Law, 1989 Duke L.J. 511, 516-517. Hmm. Perhaps you had to be there :)
"[O]ver 90 percent of earmarks never make it to the floor of the House and Senate-they are dropped into committee reports that are not even part of the bill that arrives on my desk. You didn't vote them into law. I didn't sign
them into law. Yet, they're treated as if they have the force of law."
They're treated as if? That is to say, earmarks do not have the force of law, since "committee reports" are not part of the statutes passed. So who exactly treats them as though they were legal mandates? Why, the executive branch agencies whose funds Congress is appropriating in each spending bill. In other words, the officials who (in general) answer to the president in actually spending the money Congress appropriates-they're the ones who are treating nonstatutory earmarks "as if they have the force of law." Which they don't have.
Could the president then take unilateral action to ignore earmarks and spend the appropriated funds on other agency purposes consistent with each agency's statutory authorizations? It sure looks that way. What keeps presidents from doing this is not any constitutional principle supporting the earmarks practice (and by the way, when did "pork barrel" become "earmarks"? can we call them "pigs' ears"?). It's relationship maintenance between the branches of government, loftily called "comity," which presidents are loath to violate. And agency heads especially hate the idea of ticking off members of Congress.[...]
The end Bush seeks may be frustrated by the means he has recommended. If every earmark gets a vote in Congress, it gets put in the text of the spending bill, and henceforth has statutory protection from executive nullification, since there is no line-item veto, and there won't be one any time soon. If, on the other hand, the presidentIndeed :)
undertook to spend every dollar appropriated on executive-branch priorities in each agency, ignoring all nonstatutory earmarks, then after the howling died down we might well see some reduction in the magnitude of the practice.
| You Are Bold Red Boots |
 You like to put your most outrageous foot forward! |
Most outrageous foot forward? I dunno about that--what says the readership? But, hello, would you look at those boots! Seriously. Does not their marriage of refined lines with the spark of color cause flutterings of the heart, shortness of breath, and assorted other symptoms of infatuation? They have this air of, oh...exuberance and self-possession, of... je ne sais quoi. I confess I do own a pair of red boots--not supremely fabulous heeled ones like those above, but red boots nonetheless.
The Manolo, he would be most pleased. :P
And on the house:
| You Are White Wine |
 Breezy and casual, you know how to have fun when you're drinking. And even though you can kick back with a few drinks, you never let things get out of hand. Alcohol is not a social lubricant for you... it just enhances your already sparkling personality. You prefer to date a man who is optimistic, friendly, and funny. |
