What is the appropriate means of issuing and enforcing the science policy? How are conflicts resolved within interested stakeholders?
In 1994, the State of Oregon began permitting physician assisted suicide to competent and consenting terminally ill adults. After overcoming a temporary injunction, the conflict returned to the fore in 2001 when the Justice Department (DOJ) challenged the law by publishing a rule stipulating that the Oregon law violated the Controlled Substances Act (CSA). Per the DOJ, controlled drugs were barred from being used to perform euthanasia in the CSA. Fulfilling the requirements to sue the agency per the APA, Oregon took the DOJ to court. By 2006 the Supreme Court ultimately ruled against the DOJ with the majority opinion conceding that the CSA required clarification on significant medical ambiguities that according to the precedence of “Chevron Deference” could only be clarified by the Department of Health and Human Services, and not the DOJ,. Thus, the DOJ’s intervention was stopped.
The reality of delineating how and where an agency can exert regulatory power is fraught with complexity. While the scope of an agency is expanded or constrained in the Legislative Branch by congressional statutes and budget allocation, the Executive Branch is authorized via the Administrative Procedures Act (APA) to set agency priorities and interpret how each agency administers, interprets, enforces, and promulgates regulation.
With the advent of emerging technologies in all spheres of society and the government, the original statues created by Congress to articulate the authority of regulatory agencies are becoming increasingly incomplete and ambiguous. For instance, the Internal Revenue Service’s use of financial fraud predicting algorithms provides a keen example – when the Treasury and Justice Departments were granted authority to investigate financial crimes, did Congress intend for these actions to be carried out by a potentially biased and unforgiving algorithm?
Under the APA, these kinds of questions and other means of guiding or confining actions of Executive agencies are also addressed. In particular, the APA provides a roadmap for confronting an agency’s actions in Federal court to stop any actionable and imminent decisions.
Prior to Judicial intervention, however, cases against an agency must first be regarding an active action of the agency. Second, and most importantly, the courts need proper statutory jurisdiction.
Generally, as a matter of respecting the expertise of Executive agency policy makers, the courts refrain from entertaining cases. However, if Congress has granted the courts permission on a particular aspect of an agency’s actions, then cases may be heard. Further, if the case relates to any agency infringements on the Constitution then the courts are also granted jurisdiction.
Once granted jurisdiction for a case and timely, imminent complaint is raised against an agency’s imminent action, the APA authorizes courts to judge and “hold unlawful and set aside agency action, findings, and conclusions” that meet any of the following criteria:
- arbitrary, capricious, or an abuse of discretion;
- violate the Constitution;
- exceed Congressionally stated authority for the agency;
- circumvent required procedure; and/or
- are without a factual or legal basis.
Of note, most cases brought against agencies result from a confluence of these factors, such as failing to follow the required rule making procedures where citizens may first voice their concerns with an agency’s intended actions and provide unsatisfactory answers to the questions identified in the chart above.
Pertinent to the interpretation of whether an agency is appropriately acting within its authority is the landmark 1984 Supreme Court case Chevron USA v. Natural Resources Defense Council. This case has served as a measuring stick in new cases against agencies where the authority of an agency’s interpretation of the responsibilities granted to it by Congress are in question.
In Chevron, the specific question at issue was whether the Environmental Protection Agency (EPA) had correctly interpreted its powers granted by the Clean Air Act. Per the Act, the EPA was to oversee a permit program for pollution causing industries. While Chevron had claimed otherwise, the courts determined that the agency’s interpretation was justified. Since then, the courts have used this case as a two-step test to determine an agency’s authority.
First, per Justice Stevens, “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 unambiguous, expressed intent of Congress.” However, if Congress’ intent is unclear, as was the case in Chevron, 2) the courts will give deference to the agency’s interpretation. Here, the logic being that if Congress has any specific intention of how a statue would be interpreted, that intention would have be clear in the statue.
In a second landmark case, Auer v. Robins, a similar question as Chevron’s was raised. Instead of the question being who had authority over an agency’s interpretation of its founding statue, the question was who had authority to determine the correct interpretation of an agency’s own regulation. In 1938, the Fair Labor Standards Act was passed authorizing the Department of Labor to enforce overtime pay for public employees. To enforce the Act, the Department of Labor employed, as a rule, a salaried-base test to determine qualifications for overtime according to the Act. Later, in 1997, the Department of Labor’s altered application of its salary-based test was scrutinized but ultimately defended by the courts.
After Auer, courts also began to defer to the agencies’ interpretations with respect to the interpretation of its own regulations. Like the Chevron deference, the courts believed that when agencies post notice of new regulations, collect comments, and ultimately publish a final rule, the entirety of the agencies’ intentions would be included in the new rule. Any new interpretation made after the final rule would be up to the current administration of the agency so long as the interpretation was not egregiously inconsistent with the regulation as written.
References and Further Reading
- J. Kim, “Administrative Law,” Legal Information Institute, 2017. [Online]. Available: https://www.law.cornell.edu/wex/administrative_law. [Accessed: 05-May-2018]
- Chevron USA, Inc v. Natural Resources Defense Council, Inc. et al. 1984.
- Auer v. Robbins. 1997.
- Gast, S. (2002). Who Defines Legitimate Medical Practice-Lessons Learned from the Controlled Substances Act,
- Physician-Assisted Suicide & (and) Oregon v. Ashcroft. Va. J. Soc. Pol’y & L., 10, 261.
- Huai-de, M. A. (2004). The Value and the Legislative Significance of Administrative Procedure Act [J]. The Political Science and Law Tribure, 5.
- Pierce Jr, R. J. (1996). Rulemaking and the Administrative Procedure Act. Tulsa LJ, 32, 185.
- Elliott, E. D. (2005). Chevron Matters: How the Chevron Doctrine Redefined the Roles of Congress, Courts and Agencies in Environmental Law. Vill. Envtl. LJ, 16, 1.
- Cole, J. P. (2016). An Introduction to Judicial Review of Federal Agency Action. Congressional Research Service.