By
Robert E. Wanerman of Epstein Becker & Green
A group of conservative members of Congress have introduced a pair of bills (S. 2724 and H.R. 4768) that would sweep away one of the basic principles of administrative law if they became law. The proposed amendments would make it easier to challenge many determinations involving the Department of Health and Human Services in federal courts by legislatively overruling the deference commonly applied to agency interpretations of the law.
Even before the Administrative Procedure Act was enacted in 1946, the Supreme Court gave great weight to an administrative agency’s interpretations of the statutes they administer. Since 1984, the scope of judicial review of agency action has been guided by the Court’s ruling in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984), which described a familiar two-part analysis: (1) if Congress has directly addressed the precise question in legislation, a court follows the statute; (2) if the statute is silent or ambiguous, then a court does not craft its own interpretation of the statute but determines if the agency’s action is based on a “permissible construction of the statute.” Since that time, Chevron has become the most frequently cited case in federal administrative law, and Chevron-type deference has been central to judicial review of administrative decisions in hundreds of rulings by the Supreme Court and lower federal courts.
