The Supreme Court has decided no longer to defer to the guidance of agency experts in such circumstances. If an agency fails to apply what judges decide is the “best reading” of ambiguous text, the court that’s hearing the case will likely invalidate the rule.
It’s a big deal — and not just because Barbara Streisand said so. Many scholars expect industry litigants will find it easier to gain the upper hand against bureaucrats. This shift now puts at risk federal rules intended to protect the environment and health, and promote public safety.
But the full consequences of ending Chevron deference are not yet clear. The Supreme Court suggested that judges can look to federal agencies for help in interpreting vague laws. How exactly judges will weigh agency considerations, however, is unknown. The Supreme Court also said Congress could write laws that explicitly delegate to agencies the discretion to fill in details when implementing legislation. That’s hardly a get-out-of-jail free card for agency experts: Judges can second-guess whether lawmakers were careful enough in delineating agencies’ authority.
Could the end of Chevron encourage Congress to write less vague laws in the first place? Prominent constitutional scholars suggest so. But the institutional and political roots of ambiguity will be hard to rip out. Here’s why.
Intentional Ambiguity
The scientific and technical complexity of contemporary policy problems and solutions makes Madison’s point especially relevant today — particularly when Congress addresses issues like health insurance, environmental protection and pharmaceutical drug development. Given agencies’ disproportionate stock of specialized policy knowledge, it is rational for Congress to set broad policy boundaries for regulators and grant them significant flexibility and discretion to fill in the gaps.
Justice Elena Kagan’s dissent in Loper offers a helpful example. Federal law directs the Department of the Interior and the Federal Aviation Administration to substantially restore the “natural quiet” of Grand Canyon National Park. But what policies — numbers of flights, at what time, and so forth — are consistent with restoring natural quiet? Rather than micromanage Department of Interior staff, Congress leaves these sorts of policy details to bureaucratic experts, expecting regulators to update policies as technologies advance.
Legislating for the Future
Ambiguous provisions can aid lawmakers’ efforts to legislate for the longer term — increasing the chances that regulators can lean on current laws to address problems in the future. Here’s one example. Bipartisan amendments to the Clean Air Act (CAA) in 1990 included methane emissions as a source of air pollution. Three decades later, the Environmental Protection Agency (EPA) leaned on the CAA to issue new rules aimed at lowering methane emissions to stem the rate of climate change. Old rules, new uses.
To be sure, vague statutes are not a fail-safe for tackling future problems. Take, for example, an emergency rule promulgated by the Occupational Safety and Health Administration (OSHA) in 2021. Leaning on a 1970 OSHA law, the agency mandated large employers to deploy vaccine or testing and masking protocols to stem the transmission of COVID-19 — even though the original law did not specify global pandemics as a workplace health and safety hazard.
Granted, a conservative Supreme Court majority blocked the rule, deciding that OSHA exceeded its authority to address hazards (like global pandemics) that were not exclusive to the workplace. As critics noted, the 1970 authorizing statute did not limit OSHA’s reach to hazards “unique” to the workplace.
Still, Congress’s best hope in 1970 was protecting workers with this ambiguity in OSHA’s guidelines. Legislators could not have written a sufficiently detailed statute to address global pandemics 50 years in the future.
The Price of Enactment
Avoiding precise definitions is also often the price of enactment. Writing vague text — delegating definitions and details to agency experts — helps lawmakers and the president bridge policy and political differences within and between the parties and branches of government. In contrast, specificity can jeopardize negotiations to build winning coalitions. The further lawmakers need to burrow down into details, the greater the risk they will disagree — with fellow partisans, the opposition, the other chamber, and the president. And the more specific the legislative definitions and details, the less pliable the law for addressing unforeseen future problems. As the dissenting justices in Loper observed, vague text often “represents the limits of Congress’s bargaining capacity.”
What’s more, lawmakers believe voters reward them for the positions they take — not the actual policy outcomes that result from legislation. Better to set broad policy goals, leave details to experts, and blame them for falling short than to leave fingerprints on potentially controversial policy trade-offs necessary to implement a law.
Such incentives yield vague legislative text such as requiring industry to deploy the “best system” or achieve “safe and healthful working conditions.” In the past, Congress and the president then gave regulators discretion to fill in the gaps.
Could Congress Simply Be Less Vague?
Solutions abound — if vague statutes stem only from a lack of institutional resources.
Congress could markedly increase House and Senate committee policy staff levels, which lawmakers have allowed to stagnate in recent decades. Reversing declines in congressional support agency staff — including congressional watchdogs and budget experts — would also go a long way in building nonpartisan expertise. So too would restoring Congress’s Office of Technology Assessment — a source of politically neutral expertise that a Republican majority abolished nearly 30 years ago.
Similarly, scholars Kevin Kosar and Philip Wallach’s proposed Congressional Regulation Office might equip Congress to perform its own cost-benefit analyses of proposed legislation, limiting reliance on agency experts. Of course, White House staff and organized interests could also fill the void, potentially undercutting any congressional efforts to bolster their own expertise.
But this is a bigger issue than institutional capacity. Because ambiguous language is often a price of enactment, it will be hard to wean many lawmakers from their habit of relying on vague provisions in legislation. And if newly empowered judges (thanks to Loper) are likely to view more specific legislation more favorably, why would opposing coalitions agree to invest in congressional expertise and then write more specialized legislation?
Ultimately, writing more definitive legislation cuts against the grain of many lawmakers’ political interests and institutional capacity. Congress and the president are likely to continue to favor vague statutes — even at the risk that courts will strike down agency rules to implement them. That’s why Loper is more likely to undermine than restore congressional power.
Sarah Binder and Forrest Maltzman are political scientists at George Washington University. This article was originally published by Good Authority. You can read the original version here.
Governing’s opinion columns reflect the views of their authors and not necessarily those of Governing’s editors or management.
