Legislators Debate the Effect of Overturning ‘Chevron Doctrine’
Rep. Mark Takano (D-CA)
WASHINGTON, DC — Republicans on the House VA Committee are looking to a recent Supreme Court case as an opportunity to strip the power from VA when it comes to interpreting how to enact legislation. This, they say, will prevent VA leaders from misinterpreting the original intent of laws or finding ways to interpret them to their own benefit.
Democrats argue, meanwhile, that the power will actually shift toward the judicial branch, as the ruling puts the final word on interpreting a law in the hands of judges presiding over lawsuits.
In the 1984 Supreme Court case Chevron vs. The Natural Resources Defense Council, the court ruled that judges should give deference to agency experts when interpreting any ambiguity in legislation impacting that agency as long as their interpretation was reasonable. For 40 years, the “Chevron doctrine” held sway, giving federal agencies an edge in any lawsuits contesting their interpretation of laws.
That changed, however, in June when the Supreme Court ruled on Loper Bright Enterprises vs. Raimondo. In that case, a group of commercial fishermen sued the National Marine Fisheries Service over their interpretation of a rule requiring industry to fund at-sea monitoring programs. In a 6-3 ruling, the conservative majority on the court overturned the Chevron doctrine, determining that it went against a 1946 law that said courts should decide all questions of law when it comes to federal agencies.
The public reaction was split, with Republicans applauding the opportunity to take away legal decision-making from federal agencies, including VA.
“This Congress and this committee has spent a lot of time enacting legislation holding the administration accountable … to improve the management of VA,” declared House VA Committee Chairman Mike Bost (R-IL) in a hearing last month examining ways the committee can leverage the Loper Bright decision to its advantage. “It is the fundamental duty of this committee to make sure that whoever is in the White House the people in charge are carrying out the laws to serve veterans the way Congress intended. … For too long there’s been a disconnect between Congress’s intent when making laws and how agencies put laws into effect through regulation and guidance.”
He used the Veterans Affairs Servicing Purchase (VASP) program as an example of the agency reaching beyond Congress’s intent. The intent of the legislation, he said, was to allow the VA secretary, on a limited basis, to take over mortgages on a low interest rate for a veteran or survivor in need.
“VA’s new interpretation … allows VA to take over mortgages for around 60,000 veterans facing foreclosure at an interest rate of 2.5%—well below the current market rate,” Bost argued. “VA’s decision to become a lender for tens of thousands of veterans who are high risk borrowers at an expense of the taxpayer directly undercuts the intent of Congress”.
Congress, he said, will need to work to make their intent very clear in future legislation.
The senior Democrat on the committee, Rep. Mark Takano (D-CA), asserted that the Loper Bright case does not give Congress any power that it did not already have. “Congress has always had the power to be prescriptive and deliberate with its legislative drafting to make its intent clear and unimpeachable,” he said. “We also have the choice to be intentionally vague or to give an agency flexibility in interpreting our legislation.”
That intentional flexibility is key to allowing agencies to adapt quickly to changes in science and medical technology. Takano cited the intentional flexibility built into the PACT Act, giving VA the power to add presumptive conditions as they become better understood.
“As VA finds out more about the harmful effects of toxic exposure through the years to come, they will be able to issue regulations to add presumptive illnesses,” he explained. “This will save thousands if not millions of lives because it can take decades for Congress to act on these presumptive illnesses.”
What Loper Bright does, he said, is make it easier for corporate interests to undermine federal regulations in court.
“Corporate interests who can afford high-powered attorneys will challenge agency actions that don’t boost their self-interest, and will likely win under this new Loper scheme,” Takano declared. “Claims sharks, private equity-owned healthcare, private colleges, pharmaceutical companies will march their attorneys into court and challenges any VA rule that does not bolster their bottom line.”
The Republicans’ response to the ruling is “anti-intellectual fervor,” he said. “They are celebrating the fact that well-trained and educated experts will lose the discretions that we intentionally bestowed upon them.”
Most of the witnesses testifying at the hearing were also celebrating the ruling, and provided options for how Congress can respond to the opportunity. Chad Squitieri, assistant professor of law at The Catholic University of America, argued that the Loper Bright case doesn’t go far enough. The ruling did not impact another kind of judicial deference known as Kisor deference, he said, which concerns agency interpretations of their own regulations.
“This committee might find that it is often the VA’s interpretations of the VA’s own regulations … that are most objectionable,” Squitieri testified. “This committee could rectify that situation by closely scrutinizing the VA’s interpretations of its own regulations and considering legislative overrides when appropriate. More boldly, this Committee could consider legislation that would prohibit courts from offering Kisor deference to the VA.”
