Does an administrative agency have the power to rewrite an act of Congress?

The answer to that question in the headline ought to be a resounding no. Yet, by deferring to administrative agencies over the meaning of federal law, the federal courts have for decades empowered the executive branch do exactly this. Agencies now rewrite the law with regularity.

The problem is so-called Chevron deference—a doctrine that was meant to keep courts out of the detailed implementation of federal law. Courts decided to defer to administrative agencies when the law called on them to apply their specialized expertise—especially scientific expertise—to set various standards.

Unfortunately, this practice has gotten out of hand. The courts have allowed agencies to dictate the meaning of federal law and even allowed agencies to change their mind about what a federal law means.

An example is the case of the Federal Communications Commission’s regulation of the internet at issue in Berninger v. Federal Communications Commission, which is currently pending before the Supreme Court on a petition for writ of certiorari. This is a case of an agency saying the law means one thing on one day, and the complete opposite thing on another day.

Indeed, the agency has changed its mind at least three times about the meaning of this one law. This must stop, and Berninger just might be the case for the court to put an end to this foolishness.

To get an idea of the shenanigans of the FCC in this case, you need to go back in time to 2005 to a Supreme Court case titled National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967 (2005). The issue in that case was whether broadband internet providers should be regulated as telephone companies (heavily regulated utilities) or information service providers (much lighter regulation under the law).

The FCC opted for the lighter version of regulation, interpreting the Communications Act of 1934 and the Telecommunications Act of 1996. The court ruled that this was a permissible interpretation of the federal law and that the decision of the FCC was entitled to deference under Chevron.

Ten years later, the FCC changed its mind and decided that the same law interpreted in 2005 now meant that the FCC had the authority to regulate broadband internet companies as if they were telephone companies. The District of Columbia Circuit Court of Appeals ruled that the FCC’s new decision was also entitled to deference under Chevron.

The following year, with a change in personnel, the FCC changed its mind yet again ruling that broadband internet companies were really just information service providers and not subject to heavy regulation by the FCC. The law that Congress wrote did not change during this time—only the interpretation of the law by the FCC.

Justice Antonin Scalia was fond of saying: “Words have meaning. And their meaning doesn’t change.” But that is not the case if an administrative agency is allowed to change its mind on the meaning of a statute on a whim.

The words of the statute lose all meaning if a court must permit the agency, and only the agency, to interpret and reinterpret the words Congress wrote into the law. At that point it is the agency, not Congress, that is writing the law. Even worse, it is the agency, not the courts, interpreting the law. The agency becomes a law unto itself, answerable to nobody.

Chevron deference was meant to cure the problem of an activist judiciary crusading to implement its own vision of appropriate regulation. It has led to the greater problem, however, of agencies rewriting the law (through “interpretation”) to pursue their own activist agendas never authorized by Congress.

It is time for the court to put an end to this violation of separation of powers. If the law is clear, then require the agency to enforce it. But if the law is not clear, send it back to Congress and let the elected representatives make it clear.

Chevron deference makes sense when Congress is asking an agency to use scientific expertise to set appropriate limits for air pollutants or exposure to dangerous chemicals. It violates the Constitution, however, when it is used to allow agencies to change their minds on what a law means.