Who Gets To Say What the Rules Are?

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Who gets to make the rules in American government? One of the most controversial and important cases before the Supreme Court concerns that crucial question.

Congress makes the rules for the federal government in the form of laws. But federal agencies must enforce the law and often must make rules of their own – regulations – to do so. And courts then sometimes must resolve disputes about whether an agency’s regulations are well-grounded in the statutes that Congress produces.

About 40 years ago, the Supreme Court tried to make things less confusing by setting some ground rules about who gets to make the rules. The Supreme Court decided to create a rule about rules: It said that if an agency’s rule produced a reasonable interpretation of an ambiguous statute passed by Congress, then courts should defer to the agency. In other words: If an agency’s rule is challenged in court, then a court decides whether the agency’s rule makes for a reasonable interpretation of the statute. If the court decides that the agency’s rule is reasonable, then the agency’s rule – even when challenged in court – always wins.

Perhaps the architects of the Chevron principle thought this was a good way to reduce conflict between various parts of the government. Unfortunately, that solution created a new problem: an avalanche of new federal rulemaking that is increasingly difficult for citizens to challenge in court.

Read the full article on Real Clear Politics.