Administrative Law: Who Decides What the Law Means?

In 1984, the U.S. Supreme Court decided Chevron v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Chevron concerned an EPA environmental regulation. The amended Clean Air Act required these “nonattainment” States to establish a permit program regulating “new or modified major stationary sources” of air pollution. Generally, a permit may not be issued for a new or modified major stationary source unless several stringent conditions are met. The EPA regulation promulgated to implement this permit requirement allows a State to adopt a plantwide definition of the term “stationary source.” At issue was the EPA’s determination of the meaning of plantwide and stationary source.

Writing for the Court, Justice Stevens said: “When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if 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.” Further,

“The power of an administrative agency to administer a congressionally created . . . program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.”

The reasoning for deferring to agency interpretations was explained later in the decision. “Judges are not experts in the field, and are not part of either political branch of the Government. Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges’ personal policy preferences. In contrast, an agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration’s views of wise policy to inform its judgments. While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices — resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities.”

“When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency’s policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges — who have no constituency — have a duty to respect legitimate policy choices made by those who do. The responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones: “Our Constitution vests such responsibilities in the political branches.”

The end result of Chevron is that if an agency’s interpretation of the law it enforces is reasonable, the Courts will accept the agency interpretation. As of this date, the Chevron decision has been cited more than 14,000 times and the rule is known as the Chevron Standard. The Georgia Supreme Court cited Chevron in Cook v. Glover, 295 Ga. 495 (2014), holding it must “determine what deference, if any, should be accorded DCH’s decision, and concomitantly, the deference due the CMS statutory interpretation on which DCH’s decision was based.”

The question now is whether the Chevron Standard will survive National Federation of Independent Businesses v. Department of Labor, 595 U.S. ___ (January 13 2022) and, if so, to what extent will it survive? In National Federation, Petitioners challenged the DOL’s response to Covid-19 where businesses with more than 100 employees were requried to either have employees vaccinated or have them regularly tested. The Supreme Court poses the question as ” whether the Act plainly authorizes the Secretary’s mandate. It does not. The Act empowers the Secretary to set workplace safety  standards, not broad public health measures.” Without citing Chevron, the Court set itself up as more expert than the DOL regarding what constitutes a workplace hazard. Interestingly, the Court did find that “[w]here the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible. We do not doubt, for example, that OSHA could regulate researchers who work with the COVID–19 virus. So too could OSHA regulate risks associated with working in particularly crowded or cramped environments. But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID–19 that all face. OSHA’s indiscriminate approach fails to account for this crucial distinction— between occupational risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure, rather than an “occupational safety or health standard.” Still, the question is why did the Supreme Court decide to abandon Chevron and step into the political arena while the Omicron varient surges across America?

The question going forward is whether an agency’s opinion regarding the interpretation of the statutes they enforce still matters. Why does this matter in Elder Law and Special Needs Law? The answer is simple. Most public benefits programs like Medicare, Medicaid, Social Security and Veteran’s benefits are driven by regulations and agency interpretations. For that reason, Chevron is routinely cited when there’s a controversey concerning the meaning of the underlying law and, usually, the agency opinion is adopted. Will that be the case going forward? Until the other shoe drops, we will have to wait and see.